HomeMy WebLinkAbout2015-1330.Dubuc.18-12-07 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#2015-1330
UNION#2015-0453-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Dubuc) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Bram Herlich Arbitrator
FOR THE UNION Jesse Gutman
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER
Kevin Dorgan
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING October 16 & 17; November 20, 2018
On the Employer’s preliminary motion
2
Decision
[1] This is a discharge case. The discharge occurred in May 2015. For many
reasons (some undoubtedly more compelling than others) these proceedings have been
dramatically protracted. Indeed, as of the conclusion of the argument on this preliminary
objection, we had yet to hear the evidence of a single witness.
[2] As part of its case, the union, in addition to putting the employer to the proof of
establishing just cause for the discharge, has advanced a number of other allegations,
which the parties have referred to as the “positive allegations”. One of these sets of
allegations has prompted the employer to bring the preliminary motion which is the
subject of this decision. The union alleges that certain statements made by the
employer at and subsequent to the discharge have defamed the grievor. It seeks
damages flowing from those wrongs. Seven separate instances have been identified
wherein the employer is said to have defamed the grievor.
[3] The employer does not dispute my authority to entertain and determine the
allegations of defamation. However, in its preliminary objection, it asks that I dismiss the
defamation allegations in five the seven instances pleaded by the union. It relies on
three grounds which apply variously to the different instances. In all cases it asserts that
the allegations fail to disclose a prima facie case of defamation. In addition, in some of
the instances, the employer asserts that the statements complained of are protected by
absolute or partial privilege and, in one specific instance, it is asserted that the union’s
effort to advance the claim is an improper expansion of the grievance.
[4] In the interests of expedition, the parties agreed that I would issue a “bottom line”
decision in respect of the employer’s motion. This is that decision. As indicated to the
parties, I will, on the request of either one of them, issue more complete reasons for this
decision in the final award in this matter.
[5] Having reviewed and considered the submissions of the parties, I have
determined that the employer’s motion is to be granted in its entirety. My decision rests
on some or all of the following. There are serious inadequacies in the union’s
3
particulars, even accepted as true, with respect to establishing the basis for any claim of
defamation. In various ways in various of the instances pointed to by the union, the
particulars fail to establish the essential ingredients of defamation. Further, I am also
satisfied that, in some cases, the statements pointed to by the union are subject to the
doctrines of absolute and partial privilege. And, in the case of the allegations pertaining
to the investigative report(s) flowing from the fire at the St. Albert Cheese Factory,
events which postdated the grievor’s termination and resulting grievance by some
seven months, I am satisfied that the union’s claim constitutes an improper expansion of
the grievance.
[6] For these reasons, I am satisfied that the employer’s motion must be allowed.
Thus, the union’s claim of defamation with respect to the five enumerated instances
which were the subject of the employer’s motion, is hereby dismissed.
Dated at Toronto, Ontario this 7th day of December, 2018.
“Bram Herlich”
Bram Herlich, Arbitrator