HomeMy WebLinkAbout2014-0029.Laderoute.18-05-01 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# 2014-0029; 2014-0357; 2014-0358; 2014-5009; 2016-1027; 2016-2166; 2016-2625
UNION# 2014-0234-0057; 2014-0234-0068; 2014-0234-0069; 2015-0234-0004; 2016-0234-0141;
2016-0234-0204; 2017-0234-0019
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Laderoute) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE
Diane Gee
Arbitrator
FOR THE UNION
Mathieu Belanger
Dewart Gleason LLP
Counsel
FOR THE EMPLOYER Stewart McMahon
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING April 13, 2018
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DECISION
[1] This matter concerns seven grievances filed by the Union on behalf of Michael
Laderoute all of which allege the Employer failed to comply with the health and
safety provisions of the collective agreement and various provisions of the
Occupational Health and Safety Act (OHSA).
[2] The Union provided particulars of the grievances on August 25, 2017 (the “August
Particulars”). Following mediation, the Union withdrew grievances 2015-0234-
0004 and 2016-0234-0204. In September 2017, the Board directed the Union to
file further particulars with respect to the remaining grievances and the Union did
so on January 26, 2018 (the “January Particulars”).
[3] Following receipt of the January Particulars the Employer brought a motion to have
all of the remaining grievances dismissed on the basis that they fail to make out a
prima facie case and, alternatively, that the particulars of some of the grievances
constitute an improper expansion of the grievance. The Employer’s motion was
heard on Friday, April 13, 2018.
[4] For the reasons that follow, the motion is denied with respect to Grievance No.
2014-0234-0057 (the “Access Grievance”) and the Grievance Settlement Board
will contact the parties in order to schedule further hearing dates for this matter.
The motion is granted with respect to grievance numbers 2014-0234-0068 and
2014-0234-0069 (the “Staff Shortages Grievances”); Grievance No. 2016-0234-
0141 (the “Proximity Grievance”); and Grievance Number 2017-0234-0019 (the
“Training Grievance”). These four grievances are hereby dismissed.
Submissions of the Parties
The Employer’s Submissions
[5] The Employer notes that all of the grievances in issue are individual, as opposed
to policy, grievances. The Employer argues that, as a result, in order for the grievor
to establish a breach, he must establish that the circumstances in issue put his
own personal safety at risk. The Employer argues that the particulars provided do
not indicate that the grievor’s personal safety is at risk, and the appropriate manner
for the matters to be dealt with is for the Union to file a policy grievance.
[6] The Employer began its submissions with a review of the applicable legal
principles. The Employer relies on Ontario Public Service Employees Union
(Couture et al) and The Crown in Right of Ontario (Ministry of Government
Services), GSB No. 2008-3329, (Dissanayake - April 7, 2011) for the test to be
applied in order to determine the existence of a prima facie case. The test is
described at paragraphs 6 and 12 of Couture as follows:
The decision in Re Difederico, 2008-0868 (Dissanayake), illustrates that a
prima facie motion would succeed if the facts asserted in support of a
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grievance, if accepted as true, are not capable of establishing the elements
necessary to substantiate the violation alleged.
…
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.
[7] Having regard to the test as set out in Couture, the Employer submits it is prepared
to proceed on the basis that the facts set out in the particulars are capable of being
proven. However, the Employer argues that conclusions and opinions are not facts
and are not to be accepted for the purposes of determining the presence of a prima
facie case.
[8] In support of the principle that conclusions and opinions are not to be accepted as
“facts” the Employer relies on three decisions beginning with the decision in Ontario
Public Service Employees Union (Bharti) and The Crown in Right of Ontario
(Ministry of Natural Resources and Forestry) GSB No. 2013-2789 (Anderson –
March 5, 2015) dealing with a non-suit motion brought by the Employer following
the close of the Union’s case. At paragraph 8(ii) of Bharti, it is stated: “In a non-
suit motion, the issue is whether the party responding to the motion, has made out
a prima facie case.” Commencing at paragraph 9, the decision addresses what it is
that the adjudicator is required to accept as true for the purposes of the motion:
9. The Union states that a non-suit motion is not the time to test the
quality, reliability or credibility of the evidence. Accordingly, the Union
asserts, I am required to assume that everything the Grievor said is true for
the purposes of this motion. With respect, the second proposition does not
follow from the first. The mere fact that the Grievor testified as to something
does not make it admissible evidence which must be assumed to be true. Of
particular application to this case, as will become apparent below, I am not
required to accept as evidence hearsay statements or opinions offered by
the Grievor.
10. Further, I agree with the Employer that the mere fact that the Grievor
asserts something is true, for example that the Sabbath is on Tuesday, does
not make it so for the purposes of a non-suit motion. In Nash v. Ontario
(1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 the Ontario Court of
Appeal held that, for the purposes of determining whether or not a plaintiff's
pleadings made out a prima facie case, alleged facts that were patently
ridiculous or incapable of proof need not be accepted as true. Surely no less
a standard should be applied on a non-suit motion, where the responding
party has not simply plead (sic) a case but lead all evidence it asserts is
necessary in order to prove its case.
11. A distinction must also be made between facts and conclusions of
fact. A false conclusion is not rendered true, for the purposes of a non-suit
motion, simply because the Grievor has adopted that conclusion as his
evidence. Similarly, a conclusion stated in the nature of a bald allegation in
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the absence of detailed evidence in support has no probative value: see
Guarantee Co. of North America v. Gordon Capital Corporation (1999), 1999
CanLII 664 (SCC), 178 D.LR. (4th) 1 (S.C.C.) at paragraph 31 discussing the
sufficiency of evidence submitted on a motion for summary judgement.
[9] In the case of Nash v. Ontario, supra, the Ontario Court of Appeal considered the
standard for striking a pleading in a civil action and stated that the court must
accept facts as proven “unless they are patently ridiculous or incapable of proof,
and must read the statement of claim generously with allowance for inadequacies
due to drafting deficiencies… “
[10] The third decision relied upon by the Employer for the proposition that not all
statements made by the grievor are to be accepted, is Guarantee Co. of North
America v. Gordon Capital Corp. [1999] S.C.J. No. 60 wherein the Supreme Court
of Canada was concerned with a summary judgement motion. At paragraph 27 of
the decision, the Court considered whether the conditions for summary judgement
were met as follows:
The appropriate test to be applied on a motion for summary judgement is
satisfied when the applicant has shown that there is no genuine issue of
material fact requiring trial, and therefore summary judgement is a proper
question for consideration by the court.
[11] The Employer relies on the Court's comment, set out at paragraph 31 of the
decision, that "a self-serving affidavit is not sufficient in itself to create a triable
issue in the absence of detailed facts and supporting evidence.” The Employer
noted that Vice-Chair Anderson relied upon Guarantee Co. of North America in
Bharti in support of his finding “a conclusion stated in the nature of a bald allegation
in the absence of detailed evidence in support has no probative value” in the
establishment of facts necessary to establish a prima facie case.
[12] Turning to the issue as to what needs to be established in order to establish a
health and safety violation, the Employer relies on Ontario Public Service
Employees Union (Press) and The Crown in Right of Ontario (Ministry of Health
and Long-Term Care), GSB No. 2003-1461 (Mikus – October 6, 2004) in which the
grievor was seeking damages for an alleged breach of article 9.1 of the collective
agreement. At page 47, it is stated that: “The onus is on the Union to establish the
degree of risk and to prove the causal link between the actions of the Employer
and the harm done to the grievor as a result of those actions.” Recognizing that
the grievor in the instant matter does not assert that he suffered harm and that it
is not necessary for him to have suffered harm in order to allege a violation of the
health and safety provisions, the Employer argues that the grievor must establish
that the working conditions in respect of which he complains raise a real or serious
possibility of harm to him. In this regard, the Employer relies on the following
quote from page 43 – 44 of Press:
Once the Union has demonstrated a degree of risk, the Employer must show
that it is taken reasonable steps to avoid that risk. An assessment of the
degree of risk is central to determining what is reasonable. The obligation is
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not to protect against every possible risk but to engage in reasonable
precautions. What constitutes a reasonable precaution is to be determined
by a fact-finding review of the circumstances, which will require a balancing
of the safety interests of the individual and the operational interests of the
employer. While the balance is to be struck in favour of safety, the Union
must demonstrate that the balance has been inappropriately struck by
exposure to an unnecessary risk. Where an individual grievor is claiming
harm, as in the instant case, he must establish direct causation, supported
by medical evidence, between the employee's symptoms and employer’s
practices.
[13] The Employer further relies on the following quote, set out at page 45 of the
Press decision, from Taylor-Baptiste and Ministry of Correctional Services
(Dissanayake):
There is no question that from the grievor's point of view, the proposed slot
system is safer than the existing procedure. However, as the Board observed
in Re Moulton, 230/88 (Watters) at p. 12, "… It is not enough to show that
the granting of the remedy might improve safety within the workplace. Rather
the union must establish that the working conditions suggest a real or serious
possibility of harm." We might be able to come up with a number of
proposals, which this board may be convinced will make a CO's job safer
than it is. However optimum safety is not the test of article 18.1.
[14] In the case of Ontario Public Service Employees Union (Sager, Shelley et al) and
the Crown in Right of Ontario (Ministry of Transportation), GSB No. 2000-0377
(Mikus – October 6, 2004), the Employer brought a non-suit motion seeking to
have a grievance, alleging a violation of article 18.1 of the collective agreement,
dismissed following the close of the Union’s evidence. The case was one that
dealt with stress placed on employees by what was referred to as a “bad boss.”
The Employer relies on the following quote from Laframboise and Ministry of
Community and Social Services 2268/95 (J. Roberts) set out at page 6 of Sager:
This arbitration involves the question of when, if ever, the employer will
become liable under the health and safety provisions of Article 18.1 of the
collective agreement for the consequences of the stress placed on
employees by an abusive bad boss. For reasons which follow, is concluded
that the employer will be liable for breach of these provisions whenever
managers fail to take adequate countermeasures in response to
circumstances raising a reasonable probability that unless they do so, the
practice of abuse engaged in by a bad boss under their directions will trigger
serious illness in one or more employees.
[15] Having regard to the foregoing quote, the Employer argues that the fact that
circumstances within the workplace cause an employee to experience stress, does
not create liability under the health and safety provisions of the collective
agreement.
[16] The Employer then turns to the principles that apply to the expansion of a
grievance. The case of Ontario Public Service Employees Union (Brown-Bryce et
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al) and The Crown in Right of Ontario (Ministry of Community Safety and
Correctional Services) GSB Nos. 2014-1158 et al (Dissanayake – May 12, 2016)
concerned grievances alleging violations of the grievors’ health and safety rights.
The Union filed particulars that were opposed by the Employer on the grounds they
constituted an expansion of the grievance. At page 5, the decision refers to the
principals to be applied as follows:
[9] In terms of the principles that apply in motions of this type, I was referred
to Re Greater Sudbury Hydro Plus Inc. (2003) 121 L.A.C. (4th) 193
(Dissanayake). At para 12-14, the Board in that award wrote:
12. Both parties referred me to the oft-quoted judgement of the
Ontario Court of Appeal in Re Blouin Drywall Contractors Ltd. and
Carpenters Local 2486, (1975), 1975 CanLII 707 (ON CA), 57
D.L.R. (3d) 199. At p. 204 Mr. Justice Brooke wrote:
“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”
13. He went onto state:
“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…”
14. I find two countervailing principles in the foregoing statement
by the Court of Appeal. The first is that, where on a liberal reading
of the grievance an issue, although not articulated well, is inherent
within it, an arbitrator ought to take jurisdiction over that issue,
despite any flaws in form or articulation. However, there is also a
countervailing principle to the effect that an arbitrator ought not, in
the guise of “liberal reading”, permit a party to raise at arbitration
an issue which was not in any manner, even inherently, joined in
the grievance filed. To do that would be to defeat the very purpose
of the grievance and arbitration procedure. In Re Liquid Carbonic
Inc. (1992), 25 L.A.C. (4th) 144 (Stanley), the arbitrator wrote at p.
147:
The whole process of grievance arbitration, and
grievance procedure, is designed to permit the
parties at the earlier stages to resolve the dispute
between themselves. Hence, collective agreements
invariably contain grievance procedure provisions so
that grievances are funneled to an arbitration board
only after the parties have had a chance to resolve the
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matter. It is our view that the comments of Professor
Laskin and the decision in the Re Blouin Drywall case
attempt to accommodate both values. If the issue
raised at the arbitration hearing is in fact part of the
original grievance, a board of arbitration should not
deny itself jurisdiction based on a technical objection
as to the scope of the original grievance. To do so
would deny the value of flexibility and would be to
compel the parties to draft their grievances with a
nicety of pleadings. On the other hand, if the issue
raised by one of the parties is not inherent in the
original grievance, for the board to permit the party to
raise that issue as part of their original grievance would
be to deny the parties the benefit of the grievance
procedure in an attempt to resolve the issue between
themselves. In fact, it would be to permit one party to
substitute a new grievance for the original grievance.
[10] At para. 17 of the Sudbury Hydro Plus decision, the arbitrator concluded:
17 I have concluded that the employer’s objection must be
upheld. The problem here is not the union’s failure to specify an
article number or an exact remedy. It is about its failure to raise
the alleged violation until the arbitration state. In the grievance the
union clearly complained that the grievor had been denied her
bumping rights under the collective agreement. There was no
mention of a “demotion”. The union submits that by complaining
about the denial of bumping rights, it put the employer on notice
that the union was objecting in a general way to the way the grievor
was treated following the contract out. That, in my view, is not
what the courts meant by “liberal reading” of a grievance. To
include an issue through a “liberal reading” I must be able to
conclude that the employer reasonably should have understood
upon reading the grievance that the issue in question was part of
the grievance. I am unable to reach that conclusion in this
case. The grievance was very specific about the right, violated. It
was about bumping rights. It was open to the union to clarify or
amend the grievance during the grievance procedure to include
additional claims. There is no suggestion that this was done.
[11] This Board in Re Labanowicz 2012-3224 etc. (Lynk) decision dated September 12,
2014, referred to the Greater Sudbury Hydro Plus decision (supra) and wrote at para. 22:
22 When faced with this issue, an arbitrator’s considerations
would include some or all of the following: (i) a review of the
language of the grievance, (ii) a review of the language of the
collective agreement; (iii) a consideration of any other admissible
evidence that would cast light on the parties’ understanding of the
issues raised by the grievance, such as the scope of the
discussions and exchanges during the grievance process; (iv) a
review of the remedy sought; (v) an assessment of the time frame
involved; and (vi) the degree of prejudice, if any, suffered by the
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employer. One useful indicator is to ask whether the other party
reasonably should have understood upon reading the grievance
and engaging in the grievance process that the new claim in
question was organically part of the original grievance: Re Greater
Sudbury Hydro Plus, supra.
[17] In addition to relying on the decision in Brown-Brice for its analysis of the principles
that apply to an expansion of a grievance, the Employer relies on the following
quote in support of its position that an allegation of a general nature cannot be
raised by way of an individual grievance:
17. Paragraph 38
The grievances before the Board are individual grievances. Therefore, each
of the grieving employees must assert that her rights under article 9 were
infringed by the employer's action or inaction. Paragraph 38 makes no such
assertion. Rather the assertion therein is about a risk of forcible confinement
in corrections generally. At best, if stretched to the limit, the paragraph could
be said to allege such a risk within the detention centre where the grievors
are employed. In addition to the problem that such an allegation is not
contained in the grievance as filed, a general allegation of that nature is not
properly raised in an individual grievance. As noted, an individual grievance
must be about a breach of the rights of the grieving employee. The allegation
in paragraph 38, even if it had been clearly asserted in the grievances, would
not be proper. Such general allegations should properly be the subject of a
union/policy grievance therefore, the particulars in paragraph 38 are struck
in its entirety.
[18] Following the foregoing review of the legal principles at play, the Employer turned
to the particulars filed by the Union in respect of the instant grievances with a view
to establishing that they do not establish a prima facie case. As a general matter,
counsel asserts that the particulars are devoid of any reference to the Mr.
Laderoute’s own circumstances and do not contain an allegation that his own
personal safety is at risk.
[19] Grievance number 2014-0234-0057, which will be referred to herein as the
"Access Grievance", reads as follows:
The employer has violated article 9.1 of the collective agreement and various
OHSA articles by denying the employees at Maplehurst Complex of written
standing orders, written post orders and/or written superintendent directives
concerning their safety and well-being.
[20] The August Particulars repeat the contents of the grievance with the following
addition:
The superintendent, Mark Parisotto, has refused to provide copies of these
orders to this date. This failure to provide copies of the written orders also
contravenes the Ministry's policy and procedures manual, which indicates
that copies of the standing orders must be available in each work area. Mr.
Parisotto has provided no reason for his decision not to provide employees
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with copies of the orders. The grievor seeks that the employer provide all the
above-mentioned orders to the employees forthwith.
[21] The January Particulars at the following:
To date, employees have been told their standing orders, post orders and
superintendent directives are available on a computer in each unit at the
correctional facility which they are entitled to access during their work day.
However, there is only one computer per unit staffed with 5 officers and this
computer is used by the assigned log officer as well as other officers to
complete paperwork, admits and discharges throughout the day. This makes
it extremely difficult for officers to access computers to review their standing
orders, post orders and superintendent directives as questions arise
throughout their day.
In addition, there has been a recent influx of new staff Maplehurst
Correctional Facility with approximately 120 new employees hired. The
employer's refusal to provide individual copies of standing orders, post
orders and superintendent directives has created a health and safety issue
as many of the new employees do not know their duties, are unable to access
the computers with their standing orders throughout the work day and as a
result, with the health and safety of other officers, including the grievor, in
danger of not being familiar with the appropriate procedures. This creates
danger and risk for other officers when dealing with inmates.
For example, new staff have taken inmates out of their cells after lockup
without backup from another officer which is a violation of institutional policy
and a major security and safety concern for individual officers and the
institution. This is a standard procedure which all employees should be
aware of and the safety risk could have been avoided had the standing
orders, post orders and superintendent directives been more accessible to
employees. [Additional example moved to next grievance as per Union’s
direction]
The grievor seeks that the employer provide all the above mentioned orders
to the employees forthwith or make additional physical copies available to
employees which are not limited by access to a unit computer.
[22] The Employer argues the thrust of the grievance is that, notwithstanding that the
Employer provides correctional officers with access to standing orders, post orders
and superintendent directives electronically by way of a computer located within
each unit, the Employer must provide each individual correctional officer with a
hard copy of all standing orders, post orders and superintendent directives. The
assertion is that a failure to provide hard copies amounts to a violation of article
9.1.
[23] The Employer argues that there is no direct reference to the grievor within the
grievance for any of the particulars provided. At its highest, the grievor is referred
to as part of the collective. The Employer further notes that the particulars do not
indicate that the correctional officers cannot access the standing orders, post
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borders and superintendent directives; rather they merely state that it is “extremely
difficult.” With respect to the reference to a large number of new employees
working within the Facility, the Employer argues that the Union is drawing a
conclusion when it states, in the particulars, that these employees would be less
familiar the orders. In addition to not being a “fact” that must be assumed in the
course of deciding whether or not the Union has made out a prima facie case, the
Employer states that such a conclusion does not follow given that the newly hired
correction officers have just come out of College
[24] The Employer argues, if the Union wants to establish that the current method by
which the Employer makes orders available to correction officers is a violation of
article 9.1, it would have to be supported by facts that establish: a new employee
was looking for direction about what to do; they could not get on the computer
because someone else was on it who would not give up the computer; they
stopped trying to find out what the directives said and went ahead without the
benefit of the directive; and as a result created a situation that put the health and
safety of the grievor at risk. The Employer submits that, while the grievor does not
have to have been harmed, at a minimum, he must establish that there has been
an instance when the first four facts occurred and, given that this is an individual
grievance, that his own personal health and safety was at risk.
[25] Grievances 2014-0234-0068 and 2014-0234-0069 are similar and therefore dealt
with together. For ease of reference they are referred to herein collectively as the
“Staff Shortage Grievances.” The first grievance reads as follows:
I grieve that the Employer has not fulfilled its duties under article 2.1 of the
collective agreement, the right and authority to manage the workforce, in that
they also have the legal duty to follow all other laws and regulations with
respect to the health and safety of all workers, which they have not done by
failing to reassess the risk of violence and provide adequate measures and
procedures when there is staff shortages at Maplehurst Correctional
Complex.
[26] The second of the two grievances reads as follows:
I grieve that the employer has failed in its duties under article 9.1. The
Employer shall continue to make reasonable provisions for the safety and
health of its employees during the hours of their employment; by failing to
complete a violence reassessment for risk of violence and provide measures
and procedures at Maplehurst Correctional Complex when there is staff
shortages; which the employer should or ought to have know (sic) to be a
hazard in the workplace.
[27] The August Particulars of the Staff Shortages Grievance read as follows:
… the grievor complaints that the employer violated article 2.1 of the
collective agreement in failing to reassess the risks of violence and provide
measures and procedures at Maplehurst when there is a staff shortage. Staff
shortages are an added hazard in the workplace. Staff shortages make it
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difficult for staff to intervene and respond to situations as fast as usual. This
increases the risk of violence against staff and the risk of injury.
While standing orders deal with procedures at Maplehurst when all posts are
filled, they do not consider what happens when the correction complex
operates with less than full staff. Management does not follow any specific
procedure when the complex is short staffed, and operates in an ad hoc
fashion. This lack of consistency increases the risk to staff safety. The grievor
seeks that the employer follow consistent measures and procedures when
the complex is short staffed.
[28] In January Particulars reiterate the August Particulars and add the following
example:
Another example is the lack of standing orders, post orders and
superintendent directives available when the facility is short staffed. When
Maplehurst Correctional Facility is short staffed, it is on lock down in order to
restrict the movement of inmates. During lock down periods, occasionally
officers run a "shower program” as a courtesy to inmates. This involves
officers taking 2 inmates to the showers at the time. This program is not an
institutional policy and there are no standing orders, post orders, or
superintendent directives which provide safety protocols for its execution.
Further, new employees are not aware that there are no institutional policies
related to the "shower program". This has resulted in instances where new
employees are running "shower programs” while the institution is short
staffed. This creates a safety concern for correctional officers and the
institution as there are too few officers in each unit and employees that are
needed in their units or as backup are instead running a courtesy program
for inmates. Instances like these have resulted in the grievor as well as other
officers feeling stressed and anxious while on duty in the workplace.
[29] The Employer submits that the Staff Shortage Grievances assert management
does not have specific procedures in place with respect to exactly what would
happen when the facility is short staffed; the assertion being made is that the
Employer's practice of dealing with staff shortages on a case-by-case basis, rather
than having a fixed directive, amounts to a violation of article 9.1. The Employer
argues that the particulars make statements of conclusion that are not supported
by statements of fact. For example, the particulars conclude that dealing with staff
shortages on a case-by-case basis increases risk without any facts in support of
such a conclusion. Further, the Employer submits that the grievance and
particulars are devoid of any reference to the grievor being at risk; the only time
the grievor is referred to is in the statement of relief being sought. Finally, in
respect of the assertion that the lack of a staff shortage standing order is causing
"stress" the Employer refers to the quote from Laframboise and Ministry of
Community and Social Services 2268/95 (J. Roberts) set out above wherein it was
determined that feeling stressed or anxious is not enough.
[30] Turning to grievance 2016-0234-0141, referred to herein as the “Proximity
Grievance,” the grievance itself reads as follows:
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I grieve article 2, article 9.1, article COR.2, article 5. Workplace Environment
in the Guide to Public Service Ethic and Conduct, 5.1. A safe healthy and
supportive work environment; that this employer has failed to provide as
much as possible a safe working environment by not providing safe
workplace policies and procedures with regards to the proximity of protective
custody and general population inmates housed on unit 6 and unit 7. This is
not a normal or inherent situation in our employment.
[31] The August Particulars of the Proximity Grievance read as follows:
… The grievor complaints that the employer violated articles 2, 9.1 and COR
.2 of the collective agreement by failing to provide safe workplace procedures
with regards to the proximity of protective custody and general population
inmates. These two inmate populations should never be near each other in
open situations, and arbitrators have already decided that preventing close
contact between the protective custody and general population inmates
promotes workers safety. The grievor asks that the employer provide safe
workplace policies and procedures with regards to all instances of proximity
between the two inmate populations at Maplehurst.
[32] The January Particulars add the following:
Corrections officers have previously been told by the employer that walking
protective custody and general population inmates beside one another within
the facility is acceptable however, this exposes the officers and the inmates
to a heightened risk of violence. These two inmate populations should never
be near each other in open situations, and arbitrators have already decided
that preventing close contact between protective custody and general
population inmates promotes workers’ safety. While this was previously
occurring in units 1, 5 and 6 of the Maplehurst facility, the employer has
attempted to change this practice. However, the grievor witnessed this
continuing to occur in unit 1 of the Maplehurst facility and places the safety
and security of officers assigned to this unit at risk. The grievor asks that the
employer provide safe workplace policies and procedures with regards to all
instances of proximity between the two inmate populations at Maplehurst.
[33] The Employer summarizes the thrust of the Proximity Grievance as an assertion
that while officers were told that they could walk the two populations in close
proximity in the past, the Employer has since changed its practice, however, the
prior practice continues in unit 1. The Employer argues that neither the grievance,
nor the particulars, contains any facts that, if accepted as true, would establish that
the two populations coming within close proximity creates a risk. The Employer
asserts that there is a leap to a statement of conclusion with none of the facts
needed to support it. In addition, the Employer argues that the particulars are an
improper expansion of the grievance in that the grievance alleges that the problem
exists in units 6 and 7 whereas the particulars allege a problem only in unit 1. The
Employer advances a third argument in connection with the Proximity Grievance
concerning the absence of any reference in the grievance or the particulars
concerning there being risk specifically to the grievor. The Employer notes that
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the grievor does not say he was working in unit 1 or that he came into close
proximity when the two populations came into close proximity with one another.
[34] The final grievance, No. 2017-0234-0019, referred to herein as the “Training
Grievance”, reads as follows:
I grieve that the employer and supervisors at Maplehurst Complex are not
fulfilling their duties under the OHSA and the collective agreement by not
providing "adequate training” as defined under the act, by not providing
standing orders, post orders and\or superintendent directives for staff, and
by passively condoning shortcuts in the standing orders, post orders and
superintendent directives resulting in unsafe practices within the Institution.
[35] The August Particulars add as follows:
When new staff come to Maplehurst, they receive limited site-specific
training. That said, the site-specific training provided is solely theoretical (in
a classroom) and does not include any hands-on, practical training on the
floor. Once on the floor, new staff are left without proper guidance and do not
even have access to standing orders to refer to. This results in unsafe
practices within the institution.
It is management's responsibility to provide new staff with adequate sight-
specific training and they fail to do so. The grievor requests that the employer
provide copies of the standing orders, post orders and superintendent
directives to all new staff, and that new staff’s site-specific training include
hands-on, practical training.
[36] The January Particulars contain the following additional information:
New officers are given a checklist, which they are responsible for checking
off once they have observed a more senior officer complete a task. They are
also assigned a mentor, who is supposed to be available for the new officer
to ask questions and observe however, mentors rarely stay with and assist
their mentees.
The current training process at Maplehurst lacks accountability and
supervision and does not ensure that new officers are adequately trained.
This results in unsafe practices within the institution. For example, an officer
who was responding to an emergency at the facility was covered with an
inmate's blood and a brand-new supervisor who was not trained adequately
failed to direct the officer to obtain a mandatory blood test under the
Mandatory Blood Testing Act to ensure he had not contracted a disease
while performing his duties. This put the officer's health, safety and security
at risk and could have been avoided had the supervisor obtained the
appropriate training.
[37] The Employer notes that, while the grievance and its particulars is a confluence of
different things, including within it the allegations set out in the Access Grievance,
the rest of the grievance is an allegation that new staff are not being given site-
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specific training. The grievor asserts that the in-class training provided to the new
staff within the Maplehurst facility itself after they have graduated from College,
combined with the site-specific training now in place, is not sufficient. The
Employer notes that there is no allegation that the grievor's own personal safety is
at risk.
[38] In addition, the Employer argues that the particulars consist of statements of
conclusion with no facts to support them. With respect to the only example
provided, the Employer notes that it deals with an alleged failure on the part of
management staff, not new staff.
The Union’s Submissions
[39] The Union is in agreement that, if the grievances do not establish a prima facie
case of a violation of article 9.1, the grievances cannot proceed on the basis of an
alleged violation of article 2; rather, they are to be dismissed.
[40] The Union submits that the Employer bears the onus of establishing the lack of a
prima facie case and further submits that the Board is to assume all facts as stated
in the grievances and particulars to be true of the purposes of the motion.
[41] Relying on the Board’s decision in Ontario Public Service Employees Union
(Evangelista et al) and The Crown in Right of Ontario (Ministry of Attorney General)
GSB No. 2009-1091 et al (Harris – June 13, 2011), in which the Employer brought
a motion that there was no prima facie case to meet after the Union had given its
opening statement, the Union argues that it is inappropriate for the Board to weigh
the quality of the evidence at this stage. In Evangelista, the grievors were court
reporters from the Old City Hall courthouse who were required to rotate through
the WASH assignment which resulted in them working weekend shifts, over and
above the regular Monday to Friday schedule, resulting in their working more shifts
than any other court reporters in the City. It was alleged that this requirement
interfered with religious observances and the employees’ health and safety. In
opening statement, the Union stated that the extra shifts caused increased
sickness. The Employer, in the course of its no prima facie case motion, argued
that the case law established that more than tension, stress, irritation or
unhappiness was required to establish a breach; serious illness was required. The
Employer argued that, in the absence of medical evidence, serious illness could
not be established.
[42] The Union relies on the following paragraph of Evangelista:
11. In essence, the Board is being asked to weigh the quality of the
Union's evidence, which is not appropriate at this juncture. For example, I
am asked to reject the assertion of Mr. Rubinoff that he has foregone his
religious observances because the scheduling of WASH court would make
attendance difficult. The Employer also asked the Board to weigh the quality
of the medical evidence that the scheduling of Wash court has caused
illness. Rather, at this juncture, both of those allegations of fact are to be
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taken as true. If such concerns arise expressly or inferentially from the
collective agreement, then Board has the jurisdiction to hear the matters….
Accordingly, the Board has the jurisdiction to hear and determine these
matters. Further, in my view, to weigh the evidence without hearing the
evidence of the grievors would be contrary to the rule of natural justice that
requires each party to be given an opportunity to adequately state its case.
Finally, in only the clearest of cases should the board decline to hear a matter
before concluding it has no jurisdiction.
[43] The Union submits that the same is true in this case; the Employer argues that
more than stress or anxiety is needed to show a prima facie case on a grievance
alleging a violation of article 9.1, however, in Evangelista et al, the Vice-Chair
rejected that premise when he refused to weigh the quality of the evidence. The
Union submits that, in one or more of the instant grievances, there are allegations
of stress and anxiety because of the circumstances grieved and that is enough to
establish a prima facie case. Thus, the Union submits, only after hearing the
Union’s evidence, can these matters be disposed of.
[44] It is the Union’s further submission that the finding in Laframboise and Ministry of
Community and Social Services, supra, (to the effect that the Employer is only
liable for a breach of the health and safety provisions of the collective agreement
where it fails to take adequate counter measures in response to circumstances
raising the reasonable probability that unless they do so, the practice of abuse will
trigger serious illness in one or more employees), is limited to the “bad boss”
scenario. The Union submits that such a finding does not apply outside of that fact
situation.
[45] In the submission of the Union, in order to establish a prima facie case, it need
only show that there is a real risk and that the grievor has been affected to the level
that he has. The Union submits that it would be an improper weighing of the
evidence for this Board to find that he needs to do more.
[46] The Union submits that the fact has been pleaded that there are issues with access
to the standing orders electronically and the grievor and his colleagues are not
given hard copies to refer to on a daily basis. It is submitted that, while there may
be conclusions stated in the particulars, every assertion by the Union has been
detailed and has been particularized. By way of example, it is stated in the
particulars that it is difficult to access the computers. This conclusion is supported
by the statements of fact that there is one computer per unit; there are five officers
per unit; and the computers are used by log officers. The facts that support the
conclusion will be proven once the full evidence is called and put before the Board.
The Union is to be given a chance to obtain all of the evidence it requires for a
case of this nature.
[47] With respect to the Staff Shortage Grievances it is alleged that the grievor and his
colleagues do not know how to proceed due to the absence of established standing
orders that would apply. It is argued that the factual background is clear. The
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facility operates on an ad hoc basis when there is a staff shortage. This means
that there is no structure on a daily basis when there is a shortage leading to a lock
down. This affects the grievor and his colleagues and the Union intends to call
evidence on that point. The Union submits the uncertainly itself increases the risk
and the Union intends to rely on all of the facts particularized.
[48] With respect to the Proximity Grievance, the Union points to the August Particulars
wherein it is stated that the two populations should never be near one another. In
Ministry of Correctional Services, Sudbury Jail, 2004 CanLII 22506 (ON LRB), an
application was made by the Ministry to the Ontario Labour Relations Board (the
“OLRB”) for a suspension of an order issued by an Inspector. The Inspector
attended at the facility and viewed where inmates were kept, the corridors down
which inmates would be escorted; and the type of barrier that would exist between
the inmates in the general population (GP) and the protective custody inmates
(PC) while being so escorted. The Inspector made an order with respect to an
area where the PC and GP inmates would pass one another separated only by
bars on the basis that the degree of contact between PC and GP inmates in this
area provided a significant health and safety risk to the correctional officers. The
order in question required the Employer to “take every reasonable precaution by
providing adequate segregation by classification in Area A 2 and 3 corridors.” In
the course of considering whether worker safety would be endangered by the
suspension of the order, the OLRB stated at paragraph 16 that is was “satisfied
that the Order promotes worker safety by preventing close contact between the
PC and GP inmates.” The application was dismissed.
[49] Having regard to the Ministry of Correctional Services, Sudbury Jail decision, the
Union argues that the assertion that there is a real danger is not speculation; it is
very real. Whether or not it will occur every time does not matter; the grievor
reasonably believes there is a danger and asserts that it adds to the stress in the
workplace.
[50] Turning to the Training Grievance, the Union states that the training the new staff
receive can be proven through evidence and it will be the Board’s decision to make
as to whether such evidence is sufficient or not. In addition, in response to the
Employer’s assertion that the only example provided does not deal with new staff,
it is stated that the grievance form itself does not refer to new staff – it refers to
“adequate training” generally and while most allegations relate to new staff, the
grievance is not so limited. In any event, the Union submits on the prima facie
issue it has provided adequate particulars at this level and that it would be improper
to weigh the evidence at this time – this should be done only once the Union has
had the chance to present its case after receiving the Employer’s productions and
particulars so as not to breach natural justice.
[51] On the issue of expansion of scope, the Union does not take issue with the test as
enunciated in Blouin Drywall Contractors Ltd. v. United Brotherhood of Carpenters
and Joiners of America, Local 2486, [1975] O.J. No. 31 but points out that the court
stated at paragraph 10: “… these cases should not be won or lost on the
technicality of form, rather on the merits and as provided in the contract so the
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dispute may be finally and fairly resolved with simplicity and dispatch.” In support
of this proposition, the Union also relies on Parry Sound (District) Social Services
Administration Board v. O.P.S.E.U., Local 324, [2003] 2 SCR 157 at paragraph 68.
[52] In the Union’s submission, adding Unit 1 to the Proximity Grievance is not an
expansion of the grievance. The real complaint at the root of the grievance is that
the health and safety issue caused by the proximity issue is not limited to one or
two units. The real issue has to do with health and safety and that is what is on
the grievance form and if it happens in different units than is on the form, it is simply
as a result of the fact that it happens widely in the jail. The Employer cannot say
it has been prejudiced by the addition of Unit 1 to the grievance especially this
early in the process when no particulars have yet been provided by the Employer.
Employer’s Reply Submissions
[53] With respect to Evangelista, the Employer submits that Vice-Chair Harris
concluded that there was in fact evidence that, if presumed to be true, would
establish the breaches and that the Employer was asking the Board to weigh and
reject that evidence. That is not what the Employer is asking the Board to do in this
case. The Employer asserts that the facts, if assumed to be true, would not
establish a breach. Here the Employer is not talking about weighing the evidence,
it is saying the evidence is insufficient.
[54] The Employer further notes that the only reference to the alleged breaches causing
stress is contained within the example relating to the shower program that forms
part of the particulars with respect to the Staff Shortage Grievance.
[55] Concerning the expansion of grievance issue, the Employer states that the starting
point has to be what is set out in the grievance. All of the decisions state that the
decision maker is to read the grievance liberally and that there is a tension between
not making a decision based on a technical deficiency in the form and giving
meaning to the grievance process itself.
[56] With respect to the Union’s assertion that the Board ought to let this go forward
until such time as the Union has an opportunity to obtain production from the
Employer, the Employer relies on the Courture decision in which such an argument
was considered and rejected. The Employer submits that the motion is to be
determined based on the facts as pleaded and, the fact that the Union could get
additional facts through a production process if the motion were to fail, does not
mean the motion is not to be heard and determined. The Employer notes that, in
this case, the original particulars were filed in August 2017 and the Union was
given a further opportunity of better its particulars and filed those in January 2018.
[57] The Employer disputes the Union’s characterization of the particulars filed in
connection with the Staff Shortage Grievance and urges the Board to read them
for itself. The Employer describes the complaint in the Staff Shortage Grievance
as based on the fact that the Employer has not determined in advance how each
will proceed when there is a staff shortage but rather proceeds ad hoc. The Staff
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Shortage Grievance does not state that there is a lack of direction or lack of
structure or that they do not know what to do; the Staff Shortage Grievance is
concerned about the lack of consistency.
[58] Turning to the Union’s submissions concerning the Proximity Grievance, the
Employer submits that the Ministry of Correctional Services, Sudbury Jail, supra,
decision is the only decision on the issue of proximity of GP and PC inmates. It is
an appeal of the inspector’s order and there is a great deal of reluctance on the
part of the OLRB to suspend inspectors’ orders. The Employer refers to
paragraphs 25 and 26 dealing with the deference the OLRB gives to inspectors’
orders. This is not a decision by the OLRB that the proximity of GP and PC inmates
threatens the health and safety of employee; it is a decision that the order will not
be suspended pending a hearing. Further, it is apparent that inspector’s conclusion
as to whether the proximity was a risk was fact specific as the inspector found a
risk in one part of the jail but not another. The Employer argues the Ministry of
Correctional Services, Sudbury Jail decision is of no value to deciding whether the
facts pleaded in this case establish a prima facie case.
Analysis and Decision
[59] The grievances in issue each allege a violation of article 9.1 of the collective
agreement. Article 9.1 provides as follows:
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.
[60] When litigating a breach of article 9.1, the Union bears the onus of demonstrating
the presence of a degree of risk to the safety and health of employees following
which the Employer is required to justify the necessity and reasonableness of the
employer-imposed risk.
[61] There is no dispute that a prima facie motion concerning a grievance alleging a
violation of article 9.1 would succeed if the facts stated in support of the grievance
were not capable of establishing the presence of a degree of risk. In the course
of determining whether a prima face case exists, all facts stated in the grievance
and particulars are presumed to be true and all inferences reasonably supported
are drawn. However, the grievor’s subjective perceptions or conclusions do not
have to be accepted unless grounded in demonstrable and objective criteria.
[62] These are individual grievances and the Employer argues, in each case, if it is not
established that the grievor’s own safety is at risk, the grievance must be dismissed
on the basis that it does not make out a prima facie case. As indicated above, in
determining the outcome of this motion, the Board is not only to assume all facts
stated by the Union to be true, it is to draw all reasonable inferences. The
particulars state that the grievor has been a correctional officer since 1978 and has
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worked at the Maplehurst Correctional Complex since 1990. Each grievance
alleges there are conditions within the Maplehurst Correctional Complex that
create the presence of a risk for correctional officers. It is a reasonable inference
that, as a correctional officer in the Maplehurst Correctional Complex, if a risk to
correctional officers were present, the grievor himself would be at risk.
Accordingly, assuming the Employer’s argument that the Union must establish that
the grievor’s own safety is at risk to be valid, I find, in each case, it has done so.
[63] The Union has filed two sets of particulars in connection with these matters. The
second set, the January Particulars, were filed in response to a Board direction.
Particulars are to contain, not simply bald statements of fact, but answers to the
questions: “who, what, when and where.” Notwithstanding that two sets of
particulars have been filed, no particulars have been provided with respect to a
few key allegations of fact. While the present motion is not a motion for dismissal
based on a lack of particulars, when considering the sufficiency of the “facts” and
whether they make out a prima facie case, the argument that the Union be given
the benefit of the doubt, or that the pleadings be read generously, is less
compelling where two opportunities to file particulars have been given.
[64] The Board’s task is to determine whether to grant or deny the motion by applying
the principles established in the authorities reviewed above. Where a no prima
facie motion is granted full reasons are provided, however, where the motion is
denied, it is the Board’s practice is not to provide reasons.
[65] I turn then to a consideration of the individual grievances.
Access Grievance
[66] As indicted above, in order to establish a breach of article 9.1, the Union must
demonstrate that, as matters currently stand, there is a condition in the workplace
that creates a risk to health and safety. In this grievance, the Union must establish
that the means by which the Employer has chosen to make standing orders, post
orders and superintendent directives available to correctional officers creates a
health and safety risk.
[67] The relevant facts that have been alleged are as follows:
• The Ministry’s policy and procedural manual indicates that copies of the
written standing orders must be available in each work area.
• Standing orders, post orders and superintendent directives are available on
a computer in each unit.
• There is only one computer per unit staffed with five officers.
• The computer is used by the assigned log officer as well as the other officers
to complete paper work, admits and discharges throughout the day.
• It is extremely difficult for officers to access computers to review standing
orders, post orders and superintendent directives throughout the day.
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• Many new employees do not know their duties and/or are not familiar with
the appropriate procedures and are unable to access the computers
throughout the workday and this creates a danger and risk for other officers,
including the grievor, when dealing with inmates.
• An example is given of new staff taking inmates out of their cells after lockup
without backup from another officer in violation of institution policy creating
a major security and safety concern for individual officers and the institution.
This could have been avoided had the standing orders, post orders and
superintendent directives been more accessible to employees.
[68] The thrust of the grievance is that correctional officers are unable to access
standing orders, post orders and superintendent directives that are necessary to
the performance of their jobs and the inability to do so creates a risk to safety. The
fact that the Ministry has a policy requiring copies of standing orders to be in each
work area supports the factual assertion that access to the standing orders is
necessary in order for the correctional officers to do their job. There are facts
alleged that support a finding that access to the standing orders is extremely
difficult. It is a reasonable inference that an inability to access standing orders, post
orders and superintendent directives necessary for the correctional officers to
properly perform their job would result in a risk to safety. I find the alleged facts to
be sufficient to establish a problem with access to the standing orders, post orders
and superintendent directives and a resulting risk to safety.
[69] The motion to dismiss the Access Grievance is denied.
Staff Shortage Grievance
[70] Currently, the Employer deals with staff shortages as they arise on an ad hoc basis.
In order to succeed the Union must establish that doing so creates a risk to health
and safety.
[71] The facts that have been alleged by the Union are:
• Staff shortages are an added hazard in the workplace. Staff shortages
make it difficult for staff to intervene and respond to situations as fast as
usual. This increases the risk of violence against staff and the risk of injury.
• There are no standing orders that consider what happens when the complex
operates with less than full staff. Rather, management operates in an ad
hoc fashion. The lack of consistency increases the risks to staff safety.
• When Maplehurst Correctional Facility is short staffed, it is on lockdown in
order to restrict the movement of inmates. During lockdown periods,
occasionally officers run a "shower program” as a courtesy to inmates. This
involves officers taking 2 inmates to the showers at the time. This program
is not an institutional policy and there are no standing orders, post orders,
or superintendent directives which provide safety protocols for its execution.
Further, new employees are not aware that there are no institutional policies
related to the "shower program". This has resulted in instances where new
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employees are running "shower programs” while the institution is short
staffed. This creates a safety concern for correctional officers and the
institution as there are too few officers in each unit and employees that are
needed in their units or as backup are instead running a courtesy program
for inmates. Instances like these have resulted in the grievor as well as other
officers feeling stressed and anxious while on duty in the workplace.
[72] The statement: “…management operates in an ad hoc fashion. The lack of
consistency increases the risks to staff safety” is a statement of fact (management
operates in an ad hoc fashion) followed by a conclusion (the lack of consistency
increases the risks to staff safety). There are no demonstrable or objective facts
alleged to support the conclusion. The conclusion that management operating in
an ad hoc fashion leads to a safety risk is not a reasonable inference nor is it clear
and obvious. As stated above, conclusions do not have to be accepted as true for
the purposes of a prima facie motion unless grounded in demonstrable and
objective criteria, which are not present in this case.
[73] With respect to the example of new employees who, in the absence of a “shower
program policy”, run shower programs when the institution is short staffed and on
lockdown creating a situation where there are fewer officers in the unit than
required or fewer officers to act as back-up, there are no facts that create a nexus
between the Employer dealing with staff shortages on an ad hoc basis and staff
running shower programs when there is no policy providing for such. There are
no facts contained in the grievance or the particulars that establish that the running
of shower programs cannot be prohibited or otherwise curtailed when staff
shortages are dealt with on an ad hoc basis.
[74] I find the Union has not established a prima facie case. The Staff Shortages
Grievance is hereby dismissed.
Proximity Grievance
[75] The facts that have been alleged by the Union are:
• Walking GP and PC inmates beside one another exposes officers to a
heightened risk of violence. Arbitrators have determined preventing close
contact between the GP and PC populations promotes worker’s safety.
• Walking GP and PC inmates beside one another was previously occurring
in units 1, 5 and 6. The Employer has attempted to change this practice.
• The grievor witnessed this continuing to happen in unit 1. This places the
safety and security of the officers assigned to this unit at risk.
[76] The Employer argues that the units referred to in the grievance were units 6 and 7
and the Union’s attempt to now allege that the practice is ongoing in unit 1 is an
improper expansion of the grievance. There are numerous factors an arbitrator
may look at in the course of determining where there has been an expansion of a
grievance.
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[77] The quote set out above from the Re Labanowicz 2012-3224 etc. (Lynk) decision
dated September 12, 2014 is worth repeating;
22 When faced with this issue, an arbitrator’s considerations would
include some or all of the following: (i) a review of the language of the
grievance, (ii) a review of the language of the collective agreement; (iii)
a consideration of any other admissible evidence that would cast light
on the parties’ understanding of the issues raised by the grievance,
such as the scope of the discussions and exchanges during the
grievance process; (iv) a review of the remedy sought; (v) an
assessment of the time frame involved; and (vi) the degree of
prejudice, if any, suffered by the employer. One useful indicator is to
ask whether the other party reasonably should have understood upon
reading the grievance and engaging in the grievance process that the
new claim in question was organically part of the original grievance: Re
Greater Sudbury Hydro Plus, supra.
[78] In the present case, the grievance refers to units 6 and 7 and seeks by way of a
remedy: “any and all entitlements under the collective agreement.” What is stated
in the grievance is what the Employer and the Union would have dealt with as the
grievance progressed through the grievance process. The August Particulars do
not refer to any unit numbers but seek by way of remedy: “the employer provide
safe workplace policies and procedures with regards to all instances of proximity
between the two inmate populations at Maplehurst.” The January Particulars
suggest the practice had been previously going on in units 1, 5 and 6 but was, as
of time of the January Particulars, only going on in unit 1.
[79] As the Employer argued in its submissions, having regard to the Inspector’s order
in Ministry of Correctional Services, Sudbury Jail, supra, it is apparent that,
whether the proximity of GP and PC inmates raises a risk to safety, depends very
much on the existence and nature of any barrier between them. The situation in
one unit can be very different than that in other unit. As such, the identification of
where the problem is located is very important to the Employer’s ability to
understand, respond to and potentially resolve the grievance.
[80] As stated in Re Labanowicz, it is useful to consider what the Employer would
reasonably have understood upon reading the grievance and throughout the
grievance process. In this case, the Employer would reasonably have believed
the grievance to be restricted to units 6 and 7 and would not have understood unit
1 to be part of the grievance. As indicated above, the distinction is not a technical
one.
[81] Accordingly, the reliance on unit 1 in the particulars is an improper expansion of
the grievance. There are no alleged facts on which it could be found that the
proximity of GP and PC inmates in unit 6 or 7 raise a safety issue. Accordingly, I
find that the there is no prima facie case.
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Training Grievance
[82] In the Training Grievance, in order to establish a breach of article 9, the Union
would be required to establish that the training provided is inadequate and that
the inadequate training creates a risk to the grievor’s health and safety.
[83] The facts that have been alleged by the Union are:
• When new staff come to Maplehurst they receive limited site-specific
training.
• The training is in a classroom and does not include any hands-on practical
training on the floor.
• Once on the floor new staff are left without proper guidance and do not
even have access to standing orders to refer to.
• Once on the floor, new staff are given a checklist, which they are
responsible for checking off once they have observed a more senior
officer complete a task.
• Once on the floor, new staff are also assigned a mentor who is supposed
to be available for the new officer to ask questions and observe however,
mentors rarely stay with and assist their mentees.
• This results in unsafe practices within the institution.
• An example is given of a supervisor who failed to direct an officer to obtain
a mandatory blood test thereby putting the officer's health at risk.
[84] As indicted above, during the Union's submissions, it was indicated that the
Training Grievance is not limited to an allegation that new staff are not adequately
trained; the Union asserts that the allegation is that staff in general are not
adequately trained. The Employer, in reply, argues that the grievance is in fact with
respect to new staff only and the Union's attempt to expand the grievance to
include all staff is an inappropriate expansion of the grievance.
[85] The grievance form itself indicates that the Employer it is not fulfilling its duties
under the OHSA and the collective agreement by not providing adequate training.
There is no mention in the grievance form that the allegation is restricted to new
staff. The August Particulars repeat the contents of the grievance and then go on
to describe the training that is provided to new staff and why it is deficient. The
August Particulars conclude that it is the training given to new staff that results in
unsafe practices in the institution. The January Particulars repeat the contents of
both the grievance and the August Particulars and then set out the example
relating to the supervisor who failed to direct an officer to obtain a mandatory blood
test with the conclusion that this could have been avoided if the supervisor
obtained the appropriate training. There are no particulars with respect to the
training the supervisor received or how such training was inadequate. There are
no facts set out in the January Particulars with respect to the training, or
deficiencies thereof, given to any group of employees other than new staff or the
deficiencies of any other training.
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[86] If it was the Union’s intention to advance an allegation that the training provided to
all employees is inadequate and results in a risk to health and safety, it had an
obligation to provide particulars thereof just as it did with respect to the training
given to new staff. No such particulars were provided and as such it is reasonable
to infer that it was the Union’s intention to confine the grievance to the training
given to new staff. I find the Union’s assertion during the course of the motion that
it was grieving the training of all staff to be an improper expansion of the grievance.
The grievance is limited to the allegation that new staff are inadequately trained
and, as a result, there is a risk to health and safety.
[87] Turning then to whether the particulars of the Training Grievance make out a prima
facie case, the particulars set out facts as to the nature of the training received by
new staff following which it is concluded “This results in unsafe practices within the
institution.” As indicated above, while the Board must assume the facts as stated
in the grievance and the particulars to be true, is it not required to accept
conclusions unless grounded in demonstrable and objective criteria. I do not
consider it obvious nor a reasonable inference that a lack of site-specific training
creates a risk to safety. In the absence of facts that lay a foundation for such a
conclusion, the Board is not required to assume the conclusion to be true.
[89] The Training Grievance is dismissed on the basis that it fails to make out a prima
facie case.
Summary of Determinations
[90] The motion is denied with respect to the Access Grievance (2014-0234-0057). The
Grievance Settlement Board will contact the parties in order to schedule further
hearing dates for this matter.
[91] The motion is granted with respect to the Staff Shortages Grievances (2014-0234-
0068 and 2014-0234-0069); Proximity Grievance (2016-0234-0141); and Training
Grievance (2017-0234-0019). These three grievances are hereby dismissed.
Dated at Toronto, Ontario this 1st day of May, 2018.
“Diane Gee”
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Diane Gee, Arbitrator