HomeMy WebLinkAbout2014-2911.Primo.18-11-01 DecisionCrown Employees Grievance Settlement
Board
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Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
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Toronto (Ontario) M5G 1Z8
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Téléc. : (416) 326-1396
GSB# 2014-2911; 2016-1846
UNION# 2014-5112-0108; 2016-5112-0125
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Primo) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE
Gail Misra
Arbitrator
FOR THE UNION
Tim Hannigan
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Regina Wong
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING October 16, 2018
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DECISION
[1] I have been appointed to hear two grievances filed by the Union on behalf of
Debby Primo. The first grievance, dated July 13, 2014, claims that even though
the Grievor had been accommodated at the Toronto Jail from 2010 on, and most
recently as of October 2013, despite her having filed numerous medical
documents, her accommodation had been terminated during the transition from
the Toronto Jail to the Toronto South Detention Centre (the “TSDC”).
[2] The second grievance was filed on October 11, 2016. In it, the Grievor claimed
that Sgt. Santos and the TSDC had engaged in a course of vexatious action and
discrimination on the bases of race and disability; had failed to ensure that Ms.
Primo’s accommodation needs were met; and had created barriers to her
accommodation. These actions were alleged to have exacerbated her medical
condition and increased her stress and anxiety in the workplace and at home.
[3] The parties and Grievor have agreed that Ms. Primo’s complaint to the Human
Rights Tribunal of Ontario (“HRTO”) is also to be litigated in this proceeding at
the Board. However, I have not yet been provided with a copy of that complaint.
[4] In order to facilitate the calling of the Grievor’s evidence in this arbitration, the
parties had agreed that Ms. Primo’s evidence in chief would largely be submitted
in the form of a “Will Say” or a declaration, supplemented by some oral
testimony, and that she would be subject to cross-examination on the totality of
her evidence. In advance of the hearing, the Union provided the Employer with
Ms. Primo’s Declaration dated October 3, 2018.
[5] At the hearing, and before Ms. Primo was called as a witness, the Employer
made a motion to strike portions of the Declaration on the bases of issue
estoppel and/or res judicata, which it claimed should bar the litigation of those
particular paragraphs. The Employer asserts that the Declaration contains
allegations of purported Employer misconduct from a period prior to Ms. Primo’s
arrival at the TSDC.
[6] In particular, the Employer argues that the disputed paragraphs largely refer to
matters that were dealt with in a previous grievance filed by the Grievor on March
5, 2013 (the “March 2013 Grievance”), and which had been dismissed by a
decision of this Board on January 17, 2014 (the “Leighton decision”).
[7] The March 2013 grievance, filed while the Grievor was still at the Toronto Jail,
alleged that the Employer had violated Articles 2, 3, and 9 of the collective
agreement. Article 2 was the Management Rights clause; Article 3 was the
provision against harassment and discrimination; and Article 9 related to health
and safety. The Union does not dispute that the March 2013 Grievance related
to Ms. Primo’s allegations that the Employer had failed to accommodate her and
had discriminated against her while she was at the Toronto Jail.
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[8] The March 2013 Grievance was heard at the Grievance Settlement Board on
November 7, 2013 as an Article 22.16 mediation/arbitration. On January 17,
2014 Vice Chair Deborah Leighton issued a decision stating in part as follows:
2. The parties referred this grievance to mediation/arbitration in
accordance with Article 22.16 of the collective agreement. At the outset of
the hearing the parties agreed that I had the jurisdiction to deal with this
matter. They asked that I issue a decision without precedent or prejudice,
and without written reasons.
3. Having carefully considered the submissions of the parties, as well as
the jurisprudence of the Board, I hereby deny this grievance.
[9] The Employer objects to the inclusion of paras. 6, 8, 10, 11, 14, the last two
sentences of para. 7, the fourth sentence of para. 44, and the last sentence of
para. 45 of Ms. Primo’s Declaration. It argues that these impugned paragraphs
in the Declaration are so linked to the issues that were in dispute in the March
2013 Grievance that they should be struck now on the basis of res judicata. For
ease of reference, the disputed paragraphs and sentences are reproduced here:
6. When I returned to work several months later [after February 9, 2009], I
provided medical documentation to the Employer indicating that I was
unable to work with inmates who were at risk of committing suicide. This is
where my struggles with my employer in receiving accommodations
began. My accommodation needs were overlooked.
7. … [Prior to April 19, 2012] I had pleaded with my Employer numerous
times to not be assigned to this area of the institution. However, I feel that
my mental well-being was of no concern to my employer.
8. Following this incident, my condition was significantly exacerbated,
resulting in a one (1) year medical leave. I had severe anxiety and
depression as the image of the inmate and my son would not leave my
mind.
…
10. I attempted to return to work on November 5, 2012. However, by the
second day I was assigned to guard a high-risk suicidal inmate. I spoke to
Faith Crocker, Staff Services Manager, who advised I take the rest of the
shift off. I did not return to work as the Employer was having difficulty
accommodating me.
11. When I returned to work following this leave on February 28, 2013,
my accommodations were briefly followed and I returned to a permanent
modified position scanning visitors to the Toronto Jail. I felt relieved that I
had no contact with the inmate population and being back at work
introduced a sense of order in my life.
…
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14. For the last eight (8) years, I feel that I have been fighting and
struggling with my Employer to accommodate my mental illness which
started with the suicide of my son then compounded with the suicide of the
inmate.
…
44. [At a meeting with an Employer representative on July 9, 2014] … I
told her that I had submitted several occurrence reports to the Ministry but
had still been placed in a high-suicide risk area which led to the incident
being witnessed.
45. …[In the course of the July 9, 2014 meeting] I informed her that the
reason my grievances had been dismissed had been because all of my
occurrence reports and my doctor’s notes had gone missing from my file
and I had not kept copies.
[10] The Employer argues that while the Leighton decision was non-precedential,
legal and factual determinations relating to issues and incidents were made and
as such cannot be re-opened in this hearing. In that proceeding it was
incumbent on the Union and Grievor to put their best evidence forward.
[11] According to the Employer, it is not seeking to have all of the Grievor’s particulars
that predate the March 2013 Grievance struck, but it is requesting that the Board
make no findings regarding such information, whether it is tendered through oral
testimony or documentary evidence. The Employer agrees that such
background may provide an important context for the Grievor’s psychiatric
history.
[12] In University Health Network (Toronto General Site) v. Ontario Nurses’
Association, 2013 CanLII 39960 (ON LA)(G. Surdykowski), the arbitrator
considered arguments regarding res judicata and issue estoppel, and stated as
follows:
32. Res judicata, issue estoppel and abuse of process are related
doctrines which are used to preserve the integrity of the judicial process
and the justice system. These doctrines can apply in any case, including
cases which allege human rights or Charter violations. The Supreme
Court of Canada’s decisions in Toronto (City) #2, Danyluk,
and Doering demonstrate that all three doctrines are applicable to
grievance arbitration proceedings, and that a labour arbitrator should
apply them when and as appropriate. It is both appropriate that arbitrators
have these tools available, and consistent with the concept that, subject to
the requirements of fairness, natural justice, and applicable legislation, an
arbitrator is the master of his own procedure.
33. Issue estoppel is a branch of res judicata and in this case they are
conveniently dealt with together. The twin principles underlying these
doctrines are that except in special circumstances (and subject to the
available appeal or judicial review processes) a final decision on the
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merits of substantially the same issue by an adjudicator of competent
jurisdiction should put an end to the litigation; and a party should not be
vexed more than once in the same cause. There are three preconditions
which must be met for res judicata or issue estoppel to apply:
(1) substantially the same issue must have been determined in
the prior decision raised as a bar;
(2) the prior decision must be a final decision by an adjudicator
of competent jurisdiction; and,
(3) the prior decision must be binding the parties or their privies.
[13] In the case before me the Employer asserts that the impugned paragraphs
should be struck on the basis of res judicata and issue estoppel. It argues that
the three preconditions outlined above have been met in this instance.
[14] Firstly, in the March 2013 Grievance, and in the current grievances and HRTO
complaint before me, the Grievor has asserted that the Employer’s actions
amount to harassment and discrimination. Since the March 2013 Grievance was
dismissed, the Employer argues that any allegations of harassment and
discrimination that predate that grievance have already been addressed, and
cannot be relied upon again in the current litigation.
[15] Secondly, the Employer argues that the Leighton decision was final, and as such
is binding on the parties. It notes that the Board is a statutory tribunal under the
Crown Employees Collective Bargaining Act, and the decision was properly
made in the exercise of the Board’s jurisdiction and functions. The Board’s
processes allow for full participatory rights for parties, and its processes are
transparent. Its’ decisions can be judicially reviewed, so they are subject to
scrutiny.
[16] Thirdly, in this instance where the parties are identical, the grievor is the same
person, the tribunal is the same, and the collective agreement is between the
same parties, the Employer argues that the January 2014 Leighton decision must
be found to be binding on the parties. As such, it states that the Union and
Grievor cannot be permitted to re-litigate matters that had already been dealt with
through the March 2013 Grievance, at which time it was incumbent on the
Grievor and Union to have put their best case forward.
[17] The Employer argues further that there is no policy reason to make an exception
in order to essentially hear the March 2013 Grievance again. The paragraphs
and sentences in question in the Declaration relate to issues the Grievor purports
to have had at the Toronto Jail, an institution that has been closed for some time.
Her current grievances relate to a different institution where there were different
personnel involved in Ms. Primo’s accommodation issues. The Employer points
out that in her Declaration the Grievor herself admits that her issues arose
following her transfer to the TSDC in early 2014.
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[18] The Union takes the position that the paragraphs in question are simply part of
the Grievor’s narrative of what occurred in her dealings with this Employer. It
points out that while the current grievances relate to the TSDC, both it and the
Toronto Jail are or were part of the jurisdiction of the same employer, so that the
change of location is not relevant.
[19] With respect to the Leighton decision, the Union argues that the Vice Chair noted
that the parties had agreed that the decision was without precedent or prejudice.
As that decision was issued without written reasons, and without prejudice, the
Union states that it cannot be relied upon to prejudice the Grievor now, and that
she should not be prevented from pursuing the issues in the impugned
paragraphs.
[20] The Union concedes that there is nothing in the grievances before me that refer
to the period before 2014. However, since the parties have agreed that the
Grievor’s HRTO complaint will be litigated before me, and the impugned
paragraphs relate to what the Grievor had put in that complaint, therefore, they
should be allowed to remain as background information. The Union asserts that
these paragraphs would establish a pattern of conduct, and whether or not a
remedy would be granted for the past occurrences, they should be allowed in
evidence.
[21] According to the Union, the Grievor should be permitted to rely on matters that
arose during the period dating back to 2009, and that it would be difficult to
consider what she alleges after 2014 in a vacuum without historical context. In
this regard, the Union relied on two decisions of the Board: Ontario Public
Service Employees Union (Lunan) v. Ministry of Labour, 2015 CanLII 36166 (ON
GSB) (Leighton) and Ontario Public Service Employees Union v. Ontario
(Ministry of Community Safety and Correctional Services) (O’Brien Grievance)
[2011] O.G.S.B.A. No. 8, 104 C.L.A.S. 303 (Leighton).
[22] In the O’Brien decision, cited above, the union was seeking to rely on evidence
spanning over eight years preceding the filing of a harassment grievance. The
adjudicator noted that the Board’s jurisprudence in such cases is that a three
year scope is normally fair as that is enough time to allow a union to show a
pattern of harassment; the events should not be so old as to be difficult for an
employer to defend; and a hearing can be somewhat contained (at para. 14).
She noted that each case must be considered on its own facts (para. 15). On the
facts before her, Vice Chair Leighton found that the circumstances were unique,
and therefore justified a departure from the normal practice of allowing up to
three years as the scope of evidence. Of significance was that although the
grievance had been filed in 2009, the grievor had been on LTIP since late 2001,
so that there was not going to be voluminous evidence during that period.
Although the union was permitted to rely on evidence dating back over eight
years before the filing of the grievance, that was subject to proof of actual
prejudice to the employer.
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[23] In the Lunan decision, cited above, a grievor sought to rely on one incident that
had occurred in 2004, which was approximately eight or nine years before the
filing of her grievance. The adjudicator permitted the union to adduce evidence
of the incident, but would not permit it to call evidence for the entire period (para.
9). She indicated that she would hear evidence from three years before the filing
of the first discrimination and harassment grievance as that would suffice to give
the union a fair opportunity to prove harassment and discrimination (para. 10).
[24] In neither of these cases was the Board dealing with the question of whether it
should permit a union to rely on incidents that had already been the subject
matter of a previous grievance which had been adjudicated. As such, both cases
are of limited use in my consideration of this motion. There is no jurisprudence
before me suggesting that after the Board has conducted the mediation-
arbitration of a grievance, and issued a final decision, that the subject matter of
that grievance can be re-litigated at a later date.
[25] The arbitral jurisprudence is clear that, except in exceptional circumstances, res
judicata and issue estoppel may be applied where a prior award has dealt with
the substantial matter between the parties in a forum permitting the full and fair
airing of relevant arguments that, with reasonable diligence, were available at
that time. At the core of the considerations in applying these concepts is a desire
to prevent an abuse of the arbitration process to the detriment of ongoing
relationships between parties. Arbitrators have recognized that there must be a
balancing of the interests of fairness in the litigation process with promoting
finality and certainty in the parties’ ongoing relationship, and that this balancing
may require the application of res judicata or issue estoppel to put an end to a
matter.
[26] This is not a case where the Union is simply seeking to rely on an untested
history of alleged discrimination or lack of accommodation of medical needs.
That is what the O’Brien and Lunan decisions, cited above, addressed. Even in
those cases, the arbitrator was concerned about the amount of evidence that
may have to be called, and the decisions reflect that limitations were imposed on
the evidence the union could call where it was trying to include allegations of
long-past incidents.
[27] Here, this Grievor had filed a grievance in March 2013 in which she alleged that
this Employer had discriminated against her and had failed to accommodate her.
Her grievance was heard pursuant to Article 22.16, which reads as follows:
22.16 MEDIATION/ARBITRATION PROCEDURE
22.16.1 Except for grievances concerning dismissal, sexual
harassment, and/or human rights, and Union grievances with
corporate policy implications, all grievances shall proceed
through the GSB to a single mediator/arbitrator for the
purpose of resolving the grievance in an expeditious and
informal manner.
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22.16.2 The mediator/arbitrator shall endeavour to assist the parties
to settle the grievance by mediation. If the parties are
unable to settle the grievance by mediation, the
mediator/arbitrator shall determine the grievance by
arbitration. When determining the grievance by arbitration,
the mediator/arbitrator may limit the nature and extent of the
evidence and may impose such conditions as he or she
considers appropriate. The mediator/arbitrator shall give a
succinct decision within five (five) days after completing
proceedings unless the parties agree otherwise.
…
22.16.7 Decisions reached through the mediation/arbitration process
shall have no precedential value unless the parties agree
otherwise.
[28] The Union argues that since the Leighton decision states that the parties requested
that the decision be issued “without precedent or prejudice” (at para. 2 of the
decision), that must mean that the decision cannot prejudice the Grievor’s right to
rely on the same allegations that she had made in her March 2013 Grievance.
There is no evidence before me as to what the parties meant by making the request
that they did, and there is no explanation in the decision as to what the adjudicator
understood the request to mean. As such, and in the absence of any evidence, I
can draw little guidance from the decision.
[29] The parties have agreed that decisions made pursuant to Article 22.16 have no
precedential value, and that is all I can reasonably infer. In all other respects, there
is nothing in either the collective agreement nor in the Leighton decision that I can
take to clearly state or imply that the Grievor should, despite having participated in
the mediation-arbitration process, have the right to re-litigate issues that had led
to the filing of her March 2013 Grievance. Had that been what the Grievor and
Union wished to do at that time, that Grievance could have been withdrawn without
prejudice before it was litigated. It is obvious that is not what occurred, as the
Leighton decision issued, and reference is made to the Vice Chair having
considered the submissions of the parties and the jurisprudence of the Board
before denying the grievance.
[30] Unlike the O’Brien and Lunan decisions, cited above, in this case the Grievor
appears, through her Declaration, to be seeking to call into question how the
Employer had addressed her accommodation needs going back to around 2009.
While I accept that it is necessary for Ms. Primo to provide some historical
background regarding the circumstances that led to her medical conditions, I also
agree with the Employer that it should not have to go back in history to 2009 to
have to defend against the Grievor’s largely unparticularized allegations.
[31] The Union contends that since Ms. Primo made allegations in her HRTO complaint
regarding matters going back to 2009, that should be the reason she should be
permitted to lead evidence about them in this proceeding. There is no
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jurisprudence to support that position, and it is unclear to me whether the HRTO
would hear evidence that may go back eight or nine years before the filing of a
complaint to the Tribunal, especially when a previous complaint regarding the
same matters had already been litigated and decided.
[32] For the reasons outlined above, the Union will not be permitted to call evidence
regarding any allegations that the Employer failed to accommodate Ms. Primo or
discriminated against her prior to the filing of the March 2013 Grievance. However,
to the extent that the Grievor needs to provide historical context for her situation
as alleged in her 2014 and 2016 grievances, she will be permitted to do so. As the
Employer recognized in its submissions on this motion, Ms. Primo will need to
outline her general history in order to ground her medical situation, and in my view,
she has to be able to provide a coherent narrative. At this stage of the proceeding
it is too early to decide that no findings of fact will be made regarding Ms. Primo’s
historic narrative, but that may be the ultimate outcome. For the present, and in
order to assist the Grievor in providing her history, I am permitting her to recount it
without it being allowed into evidence for the truth of its content.
[33] Having reviewed the impugned paragraphs in Ms. Primo’s Declaration, I direct as
follows:
- Paragraph 6 may remain only to the extent that it may reflect that those
are Ms. Primo’s views of what occurred, and for narrative purposes.
- The last two sentences of para. 7 may remain only to the extent that the
content may reflect that those are Ms. Primo’s views of what occurred, and
for narrative purposes.
- Para. 8 may remain as it speaks to the impact the April 19, 2012 incident
had on Ms. Primo. If there is a factual issue regarding whether the Grievor
went on a one year medical leave or not, that is a matter for cross-
examination, as is the matter of the Grievor’s alleged medical condition.
- Para. 10 should be struck, except to the extent that the Grievor can attest
to periods when she was off work for medical reasons.
- Para. 11 may remain as it addresses when the Grievor returned to work,
and how she felt upon her return. It is allowed for narrative purposes only.
- Para. 14 may remain as it speaks to the Grievor’s perception, rather than
making any specific allegations regarding the eight preceding years.
- Para. 44, fourth sentence, should be struck as it appears to relate to
matters dealt with in the March 2013 Grievance.
- Para. 45, last sentence, should be struck as it appears to relate to matters
dealt with in the March 2013 Grievance.
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[34] I remain seized of this matter.
Dated at Toronto, Ontario this 1st day of November, 2018.
“Gail Misra”
______________________
Gail Misra, Arbitrator