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HomeMy WebLinkAbout2003-1881 et al.O'Brien.18-08-13 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#2003-1881; 2010-1951; 2010-1952 UNION#2003-0999-0026; 2009-0999-0013; 2009-0999-0014 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (O’Brien) Union - and - The Crown in Right of Ontario (The Ministry of Community Safety and Correctional Services) Employer BEFORE Deborah Leighton Arbitrator FOR THE UNION David Wright Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARINGS June 8, 9, July 8, August 17, September 22, November 2, December 2, 2011; June 20, September 7, November 27, 2017 - 2 - Decision INTRODUCTION [1] Ms. Cheryl O’Brien has three grievances before the Board filed in 2003 and 2009 alleging, inter alia, that the ministry has violated her rights under Articles 2, 3, 9 and 20 of the collective agreement, breached Minutes of Settlement (MOS) signed in 1995 and the Board orders made pursuant to this settlement. She seeks to return to work and to be made whole. This is the fifth interim decision in the matter and addresses a motion by the employer to dismiss the grievances as inarbitrable because of the extreme delay in proceeding. The union opposes the motion. [2] This case has had a long and protracted history. Ms. O’Brien filed grievances in 1993 and 1994, when she was an unclassified correctional officer at the Windsor Jail alleging, inter alia, that she had suffered harassment and discrimination in the workplace, and the behaviour had been condoned by management. After 55 days of hearing before a now retired vice-chair of the Board, the matter was settled on July 12, 1995. In the MOS the ministry acknowledged that it had created a workplace “poisoned by gender hostility and discrimination”, as a result of direct action by management and its condonation of discriminatory, sexist and racist behaviour. [3] The MOS contained two parts: the ministry agreed to remedies and orders for the grievor personally and also to develop policies to address systemic change for women in corrections, jointly with the union. The grievor completed retraining and returned to work to a new position where she was eventually reassigned to an OAG 8 position in 1997. Problems occurred in this position, both with the threat of being surplussed and other alleged difficulties in the workplace. Ms. O’Brien became very ill and had to go on sick leave. By late 2000 she was approved for long-term income protection (LTIP). - 3 - [4] In 2003, Ms. O’Brien’s illness had improved and she sought to return to work. That attempt was unsuccessful and she became ill again. Ms. O’Brien went back on LTIP. The allegations regarding this return to work are the subject matter of the grievance filed in 2003. In 2008, having again recovered significantly, she sought to return to work again. The allegations regarding that return to work are the subject matter of the second grievance, filed in 2009. The third grievance, also filed in 2009, specifically alleges breaches of the MOS reached in 1995. [5] The hearing into these matters began on April 8, 2010. Over the course of the next seven months, the Board heard preliminary motions brought by the employer with regard to the jurisdiction of the Board to hear the grievances, and the scope of the evidence admissible for the 2003 and 2009 grievances. I issued four interim decisions, which I will not refer to in the summary of the history of this case, but I will address as needed in my reasons. [6] The Board heard evidence for five days from Ms. O’Brien beginning on June 8 until September 22, 2011. She completed a substantial part of her evidence in chief. The dates in November were adjourned. The last day that went forward was December 2, 2011, with mediation. It was not successful. The dates that had been set in 2012 were adjourned. Ms. O’Brien was not well enough to proceed with the hearing. Sometime in 2016, she contacted the union to resume the hearing. When it was clear that further attempts to mediate a settlement were futile, the employer made a motion to the Board to dismiss the three grievances because of the extreme delay. ARGUMENT OF THE EMPLOYER [7] Counsel for the employer argued that the delay in hearing these matters, the last six years alone, from the last day of the hearing in 2011 to the date of this motion in 2017 would prejudice the ministry’s case, if it was required to resume the hearing. The six-year delay in addition to delays in proceeding with the grievances in 2010 compound the difficulties of putting on its case. The - 4 - allegations go back to 2000, some 17 years ago. Counsel submitted that the prejudice can be inferred from the delay. All the employer’s witnesses retired many years ago. [8] Further, counsel submitted that, although the grievor has given much of her evidence, she has not finished. Credibility will be a key issue before me and counsel suggested that there were inherent problems with doing a cross- examination of a witness six years after the evidence in chief. Counsel noted that Ms. O’Brien had problems with her memory of events, even when she was giving her evidence in chief in 2011: she had a list of words before her as an aid to memory. [9] In sum, the grievor’s inability to participate in the hearing has led to a significant delay, and while not culpable, counsel argued I can infer prejudice. Hearings must be fair to both sides. To proceed with the hearing would be unfair to the employer. The Board’s ability to adjudicate will also be impaired, in counsel’s view. Consequently, counsel urged me to dismiss all three grievances. [10] Counsel for the employer relied on the following cases in his submission: OPSEU (Patterson) and the Ministry of Children and Youth Services, GSB #1989-1546 et al (Abramsky); OLBEU (Gamble) and Liquor Control Board of Ontario, GSB #1635-96 (Gray); Toronto (city) V. CUPE, Local 79, 73 LAC (4th) 412, (Craven). ARGUMENT OF THE UNION [11] Counsel for the union argued that the grievances should not be dismissed. In balancing the interests of the parties, I must be fair to both when deciding this motion. He submitted that I must consider the interests of the union and the grievor to have these matters adjudicated. He argued that while there has been a lengthy delay, a significant part of the delay is because of the nature of the process. The grievor contacted the union in 2008 to return to work and forward her 2003 grievance. The grievor filed two further grievances in 2009. Dates in the - 5 - matter were not set until 2010 and 2011. Counsel argued that she cannot be responsible for this delay. [12] Again in 2015, the grievor contacted the union and it was not until 2017 that the matter continued, initially by way of conference call. In addition to the delay, which occurred because of the process, most of the delay was caused by serious illness, her disability, as evidenced in the documents. Therefore, the delay is not the grievor’s fault. Moreover, the delay was occasioned by the grievor’s disability and is thus, protected by the Ontario Human Rights Code and the collective agreement. [13] Counsel for the union argued further that, given the nature of the case, the employer must show actual prejudice. The allegations in the 2003 and 2009 grievances are that her medical condition is a result of the employer’s actions. Hence the employer cannot avoid a hearing into the allegations before the Board, especially when the employer’s conduct made the grievor ill. Further, it is too late now for the employer to make an additional motion and attempt to prove actual prejudice. The employer has a duty to preserve evidence. And therefore this should not impact the hearing. Finally, counsel submitted that I should not reconsider motions that I decided in 2010 on delay and scope of the evidence. [14] Counsel relied on the following cases in his submission: OPSEU (Flynn) and Ministry of Government services, GSB #2007-2956, (Dissannayake); HEU v. Fraser health Authority, 118 LAC (4th) 186, (Dorsey); OPSEU (Sidhu) and Ministry of Community Safety and Correctional Services, GSB #1996-0717 et al, (Abramsky); CN/CP Telecommunications and CACAW (1981) 3 LAC 3rd 54. REPLY ARGUMENT OF THE EMPLOYER [15] Counsel for the employer agreed in reply that the delay is related to the grievor’s illness. However, he emphasized that the union cannot claim that the grievor’s illness is a result of the employer’s conduct. In addition, counsel argued that - 6 - there is a difference between speculating that there will be prejudice and inferring prejudice. He is asking me to infer prejudice, given the extreme delay. It is not reasonable to say that delay does not matter, given the nature of this case. For the sake of the integrity of the hearing process and because it would be prejudicial to the employer to continue after such a significant delay, the grievances should be dismissed. REASONS FOR DECISION [16] Essentially the motion before me is that the grievances should be dismissed on the basis of the equitable doctrine of laches. Arbitrators must ensure that the parties get a fair hearing. An extreme delay in proceeding with a hearing may prejudice a party’s ability to mount its case. This Board held in Sidhu, supra, that in assessing the facts before me, I must consider the effect of the delay and the reason for it: a. The two basic facts that must be established before a Board may refuse to give effect to the legal rights of a party under a collective agreement, under the doctrine of laches, are (1) unreasonable delay and (2) prejudice to the other party. As set forth in Brown and Beatty, Canadian Labour Arbitration: i. Barring a grievance from arbitration on the merits for [undue delay], however is not a matter which goes to the jurisdiction of the arbitrator. Rather, declining to deal with a dispute on the basis of undue delay is akin to the equitable doctrine of laches as applied in civil courts, and the decision in each case is a matter for the arbitrator to make in his discretion after considering the effect of, and any explanation for, the delay. (at para. 31) [17] Before I dismiss these grievances without a hearing, in this case, without continuing a hearing, I must decide whether the delay is unreasonable and would result in prejudice to the employer to proceed. [18] In earlier rulings, I decided that I would allow relevant and reliable evidence to be admitted for the 2003 and 2009 grievances back to December 11, 2000, subject - 7 - to the employer’s right to prove actual prejudice because of the age of the evidence. At the time this was to allow evidence of events approximately 10 years before the hearing was beginning. In 2017, it is approximately 15 to 16 years after the events in question. Counsel for the union argued that I must not, in effect, reconsider these previous rulings. I am of the view that the further delay from December 2011 to November 2017 materially changes the motion before me. And therefore, I must consider this new motion to dismiss the grievances. [19] Both parties agreed that the delay is non-culpable. It is certainly not the grievor’s fault. The reason for the delay is clear that the grievor could not proceed because of her illness. Union counsel relied on Frazer Health Authority, supra, to support his argument that delay for an illness is reasonable and even if inordinate there must be clear prejudice. In this case, the employer argued that a delay of three years was prejudicial to its case. The arbitrator found that the grievor’s illness accounted for over a year of delay. However, since it was a discharge case as a result of a well documented incident, he was convinced that the hearing could proceed. The overall delay of three years was found not to be inordinate. [20] Every case must be decided on its own facts and the facts before me are very different. There are two significant periods of delay. After the 2003 grievance was filed, Ms. O’Brien was unable to proceed for approximately five years. She contacted the union in 2008 and wanted to return to work and proceed with the grievance. She filed another grievance in 2009. There was certainly delay due to procedural issues from 2008 to the start of the hearing in 2010. But this is a normal feature of a complicated case. There were days scheduled for mediation to try and reach a settlement. Preliminary and evidentiary issues had to be addressed. The case proceeded for five days with evidence from the grievor. The last day she testified was September 22, 2011. And then the second significant delay occurred. The grievor was unable to attend the hearing until 2016, when she again contacted the union and sought to return to work. This is another five- year delay. If I do not include the procedural delays there have been approximately ten years of delay because of the illness of the grievor. By any - 8 - account this is an extreme delay. At some point, it must be unreasonable to expect the employer to continue the case. [21] The next issue to consider is the impact of the delay. If there was proof before me of actual prejudice to the employer, this decision would be straightforward. However, the employer has not tendered evidence of actual prejudice and instead argues that I should infer prejudice from the extreme delay. In Gamble, supra, in exercising the discretion to extend time limits for filing a grievance, the Board had to decide whether the employer must demonstrate actual prejudice as a result of a delay of four years. The Board rejected this contention and reasoned that “prejudice caused by delay may also be more subtle and by its nature, difficult to demonstrate.” (at para. 26) The Board went on to state that even though witnesses may still be available, their memories will nevertheless have faded. In this competition grievance, there was no submission that documents were unavailable, but the Board found that the delay would prejudice the employer’s ability to mount its case. As the Board in Sidhu said “common sense and the case law are clear that memories fade over time, and this creates a subtle prejudicial effect”. (para. 42) I agree with this reasoning and would add that extreme delay in forwarding a case to hearing results in inherent prejudice to the process. I am persuaded that there has been an unreasonable delay in hearing these grievances, which is inherently prejudicial to the employer. [22] Counsel for the union argued that the employer had a duty to preserve evidence and was on notice of the issues. With all due respect, the employer cannot preserve the memory of witnesses to events, that happened so many years ago. This is a case that is complicated. Unlike the Frazer Health Authority, supra, the evidence does not centre on a discreet incident. It is challenging to prove or defend a case of harassment and discrimination. Showing a pattern of harassment often requires evidence of incidents and events over a number of years. Moreover, credibility is an important part of any Board’s assessment of the evidence in these cases. And I am persuaded that after so many years of delay, the integrity of the hearing process is bound to be adversely affected. - 9 - [23] I have given careful consideration in balancing the rights of the parties— the grievor’s right to a hearing of a serious complaint and the employer’s right to fairly defend the allegations. Even though the reason for the delay is not the grievor’s fault, and I recognize that some of the delay was caused by the grievance arbitration process, I am convinced that it would be improper to resume the hearing. The hiatus of some six years from the last hearing day tends to exacerbate the delay. [24] Consequently, having carefully considered the submissions of the parties, I have decided to dismiss the three grievances before me. Dated at Toronto, Ontario this 13th day of August, 2018. “Deborah Leighton” Deborah Leighton, Arbitrator