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HomeMy WebLinkAbout2018-1146.Barker.20-02-03 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# 2018-1146 UNION# 2018-0205-0027 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Barker) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Diane L. Gee Arbitrator FOR THE UNION Alex Zamfir Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel HEARING May 8, 2019 and January 7, 2020 - 2 - Decision [1] This matter is a grievance alleging harassment and bullying as well as the creation and fostering of a negative workplace. The Union provided the Employer with particulars by way of letter dated January 3, 2020. Thereafter, the Employer brought a motion to have the grievance dismissed on the basis that incidents involving a manager by the name of Liz Ives are not timely pursuant to the provisions of the Collective Agreement and are not relevant to the issue as to whether incidents that occurred within 30 days of the filing of the grievance amount to harassment. The Employer further moves that the grievance should be dismissed as the remaining allegations do not make out a prima facie case. This decision determines the outcome of the Employer’s motions. [2] The Statement of Grievance on the Grievance Form reads as follows: I grieve that the employer is in violation of the Collective Agreement specifically but not limited to Articles 2.1 (Mgt/Rights), 3.3 (No Discrimination/Harassment), 9.1 (Health and Safety), WDHP, Bill 168 all other Acts, Policies, Procedures, Statutes, past Practices or jurisprudence related to fair and equitable treatment of its employees by creating a poisoned workplace, as well as fostering the negative and poisoned work place. [3] The allegations of fact as set out in the particulars, summarized so as to focus on the incidents alleged, are as follows: A. In or about the week of November 21, 2016 Ms. Ives [the grievor’s manager] said to the grievor, who goes by the name Jean, “Jeannie Weanie, tell your husband [who at the time worked in the same unit as the grievor] I am thinking about whether I’ll give your husband space or not, and only considering because you are a nice person not him. I’ll let him know tomorrow,” or words to that effect. B. In the same week, Ms. Ives stated, in the presence of other employees: “I’m cutting off your husband’s phone, the unit is not paying for it any longer, then it’s getting paid twice because EMDC is invoiced,” or words to that effect. C. On or about December 14, 2016, in the presence of a new employee, Ms. Ives referenced jokes from Saturday Night Live skits from “Schweddy balls”, and “Dusty muffin” both of which involve overt sexual statements and overtones. D. On or about January 9, 2017, at a staff meeting, the discussion turned to whether it would be appropriate to have “dog days”, on which staff could bring their dogs to the office. Another manager, Gary, expressed the view that it would not be a good idea. An employee by the name of Vicky Connor stated “Unless we carry a white stick” to which Ms. Ives chuckled. Ms. Connor then put on sunglasses and pantomimed sweeping gestures with a cane. - 3 - E. On March 20, 2017 there was a lunch meeting, organized by Ms. Ives, at which pizza was the only option offered when Ms. Ives was aware the grievor “has a diet that consists of only vegetables and meat”. F. A WDHP complaint was filed in February 2017 naming the grievor and a large number of other employees as respondents by one of her co-workers, (the “WDHP Complaint”). On April 7, 2017 the grievor arrived at a meeting scheduled in order for her to provide her response to the complaint and found the meeting had been cancelled after the end of her previous workday. The grievor “eagerly anticipated the opportunity to present her evidence clarifying that the complaints made against her were unfounded.” She sent emails to Ms. Ives and Alison Thompson, from the WDHP office, asking for the opportunity to do so between May 2017 and August 2017. On July 6, 2017 in a meeting concerning a different matter, Ms. Ives told the grievor the complaint had been resolved on May 22, 2017 and that Ms. Ives had become so aware on June 26, 2017. The grievor found the wait to provide her evidence regarding the complaint stressful and said she ought to have been advised earlier especially given her email asking for an opportunity to do so. On August 1, 2017, Ms. Ives told the grievor she had followed up with Ms. Thompson as to what information concerning the WDHP complaint could be divulged and Ms. Thompson said she had no information to offer. Ms. Ives was replaced by Ms. Coleman in September 2017. On October 6, 2017 Ms. Thompson wrote to the grievor that the outcome of the WDHP complaint was to come from the Responsible Manager not the WDHP section. The grievor spoke to her new manager, Ms. Coleman, to raise the issue of delay that same day. On October 8, 2017 the grievor received a letter dated October 4, 2017 that the complaint was closed. G. On November 1, 2017 the employees were advised that a “Workplace Assessment would take place and would involve interviews with a workplace consultant.” H. On December 5, 2017 the grievor raised with Ms. Coleman an incident in which the grievor felt she had been disrespected by another manager, Ryan, who criticized an email the grievor had written. Ms. Coleman discussed the matter with Ryan and there was no impact to the grievor’s relationship with Ryan. I. On December 8, 2017 the grievor participated in a Workplace Assessment interview with a consultant from a vendor retained by the Employer. The consultant pressed the grievor as to whether she had conflicts with other employees and the grievor mentioned the incident involving Ryan stating it was resolved quickly and a conflict the grievor had years earlier, now resolved, with Ms. Connor. After this interview Ryan and Ms. Connor’s conduct towards the grievor changed for the worse. J. On March 7, 2018 Ms. Coleman asked the grievor “how she felt about participating in workplace mediation following other people coming forward and requesting mediation after the Workplace Assessment interviews.” The grievor indicated she was willing to participate. On April 3, 2018 the grievor was told the mediation sessions would involve the grievor, Ryan and Ms. Connor. On April 10, 2018 the grievor asked Ms. Coleman who had requested the mediation and Ms. Coleman said it was a recommendation from the consultant. The grievor was “taken aback as she was given the impression by Emily Coleman earlier that other employees - 4 - had requested workplace mediation.” The particulars contain the following description of the conversation that then took place between the grievor and Ms. Coleman: i. Emily Coleman then indicated that Ms. Barker could decline to participate. ii. Ms. Barker stated that Emily Coleman had now damaged her working relationship with her coworkers, and made among other comments the following statements, or words to the same effect: “Our working relationships continued in a respectful manner and now three months later when the three of us have been contacted they can’t look me in the eye.” “She [referring to Emily] has damaged my self-esteem and the professional respectful working relationship that has been working and is now back to square one.” “It was poor judgment and after meeting with the consultant next week this could result in further damage, and where will she be to repair the damage”. “You force me to hide at my desk because it looks like I have a new problem and after mediation if the incidents are reopened more damage will occur, how can I work under the stress for the rest of a new problem that she created.” “I can’t cancel because now it’s being set in motion and the damage has been done.” iii. In the context of these discussions, Ms. Coleman stated she did not understand and the intention was to help. iv. Ms. Barker responded, “To help with what”, or words to that effect. v. Emily Coleman stated,” Whatever was in the report [referring to the W orkplace Assessment]”. vi. Miss Barker responded that “I have nothing to hide and talked about old things when the question was asked by the consultant, now it’s dredged back up when it was fine and buried.” vii. Emily Coleman stated: “You can bring a support person to the interview, just give me a heads up”. viii. Ms. Barker responded, “I hope this can be resolved because if it cannot she may have created a poison [sic] work environment.” - 5 - ix. Emily Coleman indicated she could cancel without them knowing who canceled. x. Miss Barker responded: “They already think I have an issue, I have to attend now, I have no choice” following which Ms. Barker thanked Ms. Coleman for her time and exited the office. K. The particulars continue stating that there was a mediation session on April 10, 2018 with the consultant. The grievor stated that she had participated in the mediation because she was under the impression other employees had requested it. The grievor understood from the mediator that Ryan “was confused as to why he was asked to attend the mediation and that if Ms. Barker did not wish to proceed the process did not need to continue. Ultimately the mediation was discontinued.” L. The remainder of the particulars describe interactions between the grievor and Ryan on April 11, 2018, and between the grievor and Ms. Connor on April 12, 2018, that the grievor states gave her the perception that Ryan was guarded and uncomfortable in her presence and Ms. Connor was uncomfortable in her presence following the failed mediation. Submissions of the Parties [4] The Union and the Employer each conducted a thorough analysis of the particulars and the case law on each of the points raised. [5] The Employer asks that the grievance be dismissed in its entirety. It is argued that the incidents described in the particulars amount to allegations that the grievor was harassed by two successive managers; first Ms. Ives and then Ms. Coleman. The allegations in connection with incidents involving Ms. Ives are set out in paragraphs 5 – 10(d) of the Union’s particulars. The allegations in connection with incidents in which Ms. Coleman is named are set out in paragraphs 10(h) – 15 (b) of the particulars. [6] The Employer submits, assuming the particulars at paragraphs 10(h) – 15 (b) to be true and provable, they do not make out a prima facie case of harassment against Ms. Coleman. The Employer further argues that the Union should not be allowed to rely on the allegations against Ms. Ives in paragraphs 5 – 10(d) in order to bolster its case against Ms. Coleman as they are untimely and irrelevant. In the alternative, if the GSB is not inclined to dismiss the grievance in its entirety, the Employer submits all allegations against Ms. Ives should be dismissed. [7] The Employer states the grievance is a generic harassment grievance meaning it does not refer to any specific events. It is argued that the last of the allegations in connection with Ms. Ives is the discussion Ms. Ives had with the grievor on July 6, 2017 during which Ms. Ives informed the grievor the WDHP complaint was resolved. The Employer points out that Ms. Ives left the workplace and was replaced by Ms. Coleman on September 5, 2015; a detail that is not set out in the - 6 - particulars but with which the Union agrees. Thus, the last incident alleged in connection with Ms. Ives, occurred at least nine and a half months prior to the grievance being filed and six months after Ms. Ives ceased being the grievor’s manager. The Employer submits the allegations in connection with all of the incidents concerning Ms. Ives are stale and untimely. The remaining paragraphs of the particulars barely refer to Ms. Coleman at all and fail to establish a prima facie case of harassment on her part. [8] The Employer refers to OPSEU (Grievor) and The Crown in Right of Ontario, 2015 CanLII 20923 (ON GSB) for its review of the caselaw on harassment set out beginning at paragraph 92: [92] The grievor in this case has alleged that she has been bullied and harassed at the hands of her coworkers and two of her managers virtually since her arrival. It seems a useful exercise to first consider what harassment and bullying are and what they are not. [93] In Re TTC (supra), Arbitrator Shime defined harassment as: Abusive conduct includes physical or mental maltreatment and the improper use of power. It also includes a departure from reasonable conduct. Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment. [94] Harassment was also considered in Re Shopper’s Drug Mart (supra). In that decision Arbitrator Larson noted at paragraph 28 that: Harassment normally involves an element of persistent conduct or a course of activities that involves hostility, importuning, badgering and intimidation or bullying that causes the person distress that is inimical to a safe and positive work environment: Toronto Transit Commission (2004) 132 L.A.C. (4th) 225 but in some instances a single act may be so serious as to amount to harassment including mere verbal abuse: Tyee Village hotel (1999) 81 L.A.C. (4th) 365. As was said in Re Leaf Rapids (Town), unreported November 8, 1993 [summarized in 33 C.L.A.S. 542] at p. 7: It has been observed that it would be rare for a single occurrence to be labeled harassment. In fact, according to Mr. Gibson, several adjudicators have identified frequency as a normal component of this type of discrimination. A single incident could be, and has been shown to be enough, if it is sufficiently egregious, however. - 7 - [95] Arbitrator Larson goes on to consider the difficult issue of determining whether the conduct of certain managers is aggressive or abusive. He notes that there is a fine line between the two. Interestingly the Collective Agreement in that case included a provision that said the exercising of normal management rights shall not be considered job harassment. While the arbitrator noted that such a clause does not allow harassment it does recognize that at times managing of employee performance – so long as it is not done in an abusive, demeaning or abusive manner – has a legitimate purpose in the workplace. He considered an earlier decision by Arbitrator Laing Re Province of British Columbia (1995) 49 L.A.C. (4th) 193 wherein she considered the word harassment and noted: This is a serious word, to be used seriously, and applied vigorously when the occasion warrants its use. It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts or foolish words, where the harm, by any objective standard, is fleeting. Nor should it be used where there is no intent to be harmful in any way, unless there had been a heedless disregard for the rights of another person and it can be fairly said, “You should have known better.” …. As I said earlier in this award, harassment is a serious subject and allegations of such an offence must be dealt with in a serious way, as was the case here. The reverse is also true. Not every employment bruise should be treated under this process. It would be unfortunate if the harassment process was used to vent feelings of minor discontent or general unhappiness with life in the workplace, so as to trivialize those cases where substantial workplace abuses have occurred. ……. [96] In Re Canada Safeway (supra) Arbitrator Ponak specifically considered the difference between harassment and workplace tension. He reviewed an earlier passage from the decision above of Arbitrator Liang. At paragraphs 227-231 she said: In these times there are few words more emotive than harasser. It jars our sensibilities, colours our minds, rings alarms and floods adrenaline through the psyche. It can be used casually, in righteous accusation, or in a vindictive fashion. Whatever the motivation or reasons for such a charge, it must be treated gravely, with careful, indeed scrupulous fairness given both to the person raising the allegation of harassment and those against whom it is made. The reason for this is surely self-evident. Harassment, like beauty, is a subjective notion. However, harassment must also be viewed objectively. Saying this does not diminish its significance. It does however, accentuate the difficulty of capturing its essence in any particular circumstance with precision and certainty. - 8 - For example, every act by which a person causes some form of anxiety to another could be labeled as harassment. But if this is so, there can be no safe interaction between human beings. Sadly, we are not perfect. All of us, on occasion, are stupid, heedless, thoughtless and insensitive. The question then is, when are we guilty of harassment? [97] Arbitrator Ponak in Re Canada Safeway (supra) also considered the need for objective evidence in the determination of whether harassment has taken place. In his deliberations he quoted Re Nunavut and PSAC (2006) 151 L.A.C. 35 (Knopf) which said, at paragraph 122: An allegation of harassment is a serious matter. It cannot be taken lightly, and the onus of proof lies with the Union. A finding of harassment can only be made if there is objective evidence to support that claim. The fact that (the grievor) honestly felt that she was being harassed, and the fact that she suffered greatly, is not enough to make this claim succeed….. The grievance is against the Employer. This grievance can only succeed if the objective evidence supports a finding that there has been abusive conduct as a result of the improper use of a power or departure from reasonable norm. ……. [98] It is apparent from the jurisprudence that has developed over many years that allegations of harassment are to be carefully scrutinized. That close examination of the facts is needed in order to protect the grievor if she has indeed been the target of harassment. It is equally important for her managers and coworkers if it is determined that she was not. [99] The onus to show that the grievor was harassed and bullied is upon the Union. [9] Relying on the above overview of the jurisprudence, and more specifically on the quote set out above from Nunavut, supra, the Employer argues that harassment is “abusive conduct as a result of the improper use of power or a departure from the reasonable norm.” [10] The Employer relies on OPSEU (Louis) and Ontario (Ministry of Colleges and Universities) 2019 CanLII 78767 (ON GSB) for the test as to whether or not events particularized establish a prima facie case: The test to be applied in order to determine the particularized allegations make a prima facie case is to ask if the facts asserted, if accepted as true, are capable of establishing the elements necessary to substantiate the violation alleged. [11] With respect to the timeliness of the allegations concerning Ms. Ives, the Employer relies on article 22.1 of the Collective Agreement which provides that grievances are to be resolved as quickly as possible. The Employer further relies on Article 22.2 in which it is stated that a grievance is to be filed within 30 days - 9 - after the circumstances giving rise to the complaint have occurred. Further reference is made to article 22.14 which indicates that an untimely grievance is deemed to have been withdrawn. These provisions of the Collective Agreement, the Employer argues, indicate it is the parties’ intention that grievances be brought in a timely manner. The Employer recognizes article 22.14.7 gives the GSB the jurisdiction to apply section 48(16) of the Labour Relations Act, 1995 (“LRA”) to extend the timelines specified in the Collective Agreement but disputes the GSB should exercise its discretion in this case. [12] The Employer recognizes that the arbitral jurisprudence stands for the proposition that, in the case of a harassment grievance, evidence that predates the timelines for the filing of a grievance can be relevant and thus admissible. The Employer refers to Hotel-Dieu Grace Hospital v. ONA (1997), 62 L.A.C. (4th) 164 at paragraphs 3 and 6 where it is accepted that, when the success of a grievance rests on showing a pattern of discrimination, scope for the admission of evidence prior to the limitation period for the filing of a grievance must be allowed. The Board in Hotel-Dieu permitted evidence to be adduced going back a period of three years prior to the date the grievance was filed. [13] The decision of Ontario (Dubuc) and Ontario (Ministry of Community and Correctional Services) 2016 CanLII 90058 (ON GSB) is relied on by the Employer to demonstrate that, in harassment cases, the GSB has likewise determined it will, as a general matter, permit evidence of events as far back as three years prior to the date the grievance was filed and has resisted challenges brought by the Union as to the soundness of that general rule. The Employer relies on the following paragraphs of Dubuc in support of its argument that the GSB can exclude evidence within the three-year period: [13] And, with the greatest respect to the learned arbitrator, I do not share the view that relevant evidence must always be admitted unless there exists a judicial or statutory basis for its exclusion. One need only, for example, consider an aspect of the fundamental labour relations doctrine of progressive discipline. There can be little doubt that an employer seeking to adduce evidence of prior undisciplined misconduct (however serious) to support the discharge of an employee with no prior formal discipline would face significant and likely impenetrable barriers to the introduction of such evidence. Such evidence might clearly be relevant but equally clearly inadmissible, despite the lack of any judicial or statutory basis for such exclusion. [14] And there is a certain irony that flows from this example. It is, in some respects, the mirror image of efforts to rely on events which significantly pre-date the filing of a grievance. In the typical such case (in this regard the instant case is not entirely typical – a point to which I shall return) the union seeks to assert (otherwise untimely) allegations of prior employer collective agreement violations. However, it is precisely in recognition of the systemic barriers and other difficulties associated with the timely prosecution of cases in which a pattern of improper conduct - 10 - amounting to harassment, discrimination or bullying that this Board has developed its three-year rule of thumb, permitting a grievor to rely on and point to events which would not otherwise properly form part of a grievance. [15] That rule of thumb is just that – a point of departure, not an inflexible rule to be mechanically applied in all cases. In the present case, no circumstances were pointed to that would support or necessitate an enlargement (or contraction) of the three-year period. [14] The Employer does not take the position that incidents described in the particulars that refer to Ms. Coleman should be struck even though such incidents may have occurred more than 30 days prior to the grievance. The Employer acknowledges that, should the GSB find there to be a prima facie case of harassment by Ms. Coleman, all incidents concerning her would be relevant to the issue as to whether the incident that forms the basis of the grievance amounts to harassment by Ms. Coleman. However, the Employer argues that, it is only when Ms. Coleman became the grievor’s manager, that any “pattern of harassment” by Ms. Coleman could have begun and not earlier. [15] It is the Employer’s position that there is no nexus between the incidents described in the particulars concerning Ms. Coleman and the earlier incidents described in the particulars concerning Ms. Ives. It is argued, there is no similarity in the type of harassment alleged nor is there any other similarity running between them. The purpose of the three-year rule is to permit the Union a fair opportunity to establish a pattern, or course, of conduct. Given the gap in time between the events, and the lack of similarity or nexus between them, the Employer argues that the incidents involving Ms. Ives could not be part of a pattern of conduct together with the incidents involving Ms. Coleman. [16] The Employer argues that any conduct that even approaches harassment at law ended months before Ms. Ives left the workplace. According to the Employer, the most salient allegations are the stalest and what is presented is essentially a grievance in reverse. The Union is trying to bootstrap the allegations concerning Ms. Coleman with the allegations concerning Ms. Ives. [17] In support of its position that the GSB has declined to allow evidence within three years of the filing of the grievance, the Employer relies on OPSEU (Cooper) and Ontario (Ontario Clean Water Agency) 2019 CanLII 65193 (ON GSB) (“Cooper #2) wherein, at paragraph 5, the GSB struck paragraphs in the particulars on the basis that they did not allege an act that could be considered part of a course of conduct amounting to harassment. [18] Turning to a private arbitration Award, the Employer relies on ICS Courier and Unifor, Local 333 (Bartlett), 2015 CarswellOnt 14006 for its comment that it is inappropriate for a Union to adopt a “kitchen sink” approach in the context of a claim of harassment: - 11 - 23. The Employer has the justifiable right to insist that it only be required to respond to allegations that are made in a timely fashion. This precept that matters should be dealt with expeditiously lies at the heart of there being a mandatory time period for filing a grievance under the collective agreement set out in Article 7.03, which specifies that a grievance must be filed within three working days from the date the incident occurred or should have be known by the grievor. … 24. At the same time, in the context of this grievance, the Union must be able to tell the grievor’s story. In this regard, with respect to an allegation of harassment or discriminatory treatment, a particular incident on its own may not warrant the filing of a grievance, but may be relevant in terms of establishing a history or pattern of inappropriate behaviour. Moreover, the existing complained-of behaviour may only be appreciated as constituting harassing conduct in context of a particular history. As suggested by Arbitrator Albertyn in University Health Network, supra, case the grievor generally should be provided an opportunity to outline the history and background facts that may be supportive of his / her claim of harassment. 25. In seeking to strike the appropriate balance between those competing interests, it must, however, be remembered that a rights arbitrator’s jurisdiction arises from the particular grievance being adjudicated. That is, the arbitrator is not embarking on a general inquiry as to whether the grievor has been subject to harassment throughout her employment with the Employer. Further to this point, just as it may be inappropriate for an employer to adopt a “kitchen sink” approach regarding the meting out of discipline; it would likewise, be inappropriate for a Union to adopt a “kitchen sink” approach in context of a claim of harassment referencing every event in the grievor’s work history wherein he/she was of the view that he/she had been dealt with inappropriately – this caution especially applies to “stale dated” matters. [19] The Employer relies on Sault College and OPSEU (Mullins), 2019 CarswellOnt 9458, for the Arbitrator’s comments concerning the dangers of delay in the context of a harassment grievance: 37. In my view, when striking the balance, an arbitrator should also keep in mind the time honored principle of labor relations that grievances about alleged violations of the collective agreement should be brought within a reasonable time after the matter in issue arose (see: U. E. v. Canadian General Electric Co. (Davenport Works) (1952), 3 L. A.C. 980 (Ont. Arb.) (Laskin)). I accept Union counsel’s submissions that the issue of delay in filing a grievance can be addressed through fashioning appropriate remedial relief, and that the admission of evidence of incidents that date back many years for contextual purposes does not mean that remedial relief will be granted for such incidents. However, it is my view that a delay in filing harassment grievances results not only in prejudice in conducting a fair hearing (which is what most of the cited awards seem to focus on). Delay also impacts the ability of the parties to properly address, in a timely - 12 - fashion, issues and concerns as they arise. That circumstance affects ongoing relations between and amongst the Employer, grievor and thee Union. As Professor Laskin put it so eloquently in General Electric, supra, the proper administration of the collective agreement requires “… mutual recognition by the parties of a principle of repose as to all claims under the Agreement not asserted within a reasonable time.” There is a real danger to present relations by permitting a grievance to drag up ghosts from the past when the Employer is either unaware of the matters of concern at the time they arise (and therefore unable to address them) or where the employer believes that concerns have been addressed and the matter concluded. …. [20] The case of OPSEU (Louis) and Ontario (Ministry of Training, Colleges and Universities) 2019 CanLII 78767 (ON GSB) is cited for the proposition that a single grievance can contain timely and untimely allegations. [21] OPSEU (Cross et al) and Ontario (Ministry of Community Safety and Correctional Services) 2015 CanLII 60421 is a case involving a group grievance brought by seven Correctional Officers in which it was alleged that they were harassed and bullied by Doug Barker. The Employer relies on the decision for the arbitrator’s comments concerning the particulars provided in connection with two of the grievors, Karen Trumbull and Carol Knight. At paragraphs 63 and 64, the arbitrator stated she did not see how matters particularized in connection with Ms. Trumbull that, at best, arose eight months before the filing of the grievance, could be found to be timely when the grievor ought to have been aware she may have a complaint. The arbitrator declined to apply the three-year rule to evidence concerning Ms. Trumbull as “there was no incident involving Ms. Trumbull in the eight months before the grievor joined the group grievance….” The same conclusion was reached at paragraph 101 concerning Ms. Knight as her allegations also date back to eight months before the filing of the grievance and nothing had been pled for the intervening period to suggest she continued to be treated in any manner that would cause her to complain. [22] The Employer also relies on OPSEU (Berday) and Ministry of Transportation, 2008 CanLII 70540 (ON GSB) in which the Board dismissed a grievance filed at best four months after the grievor became aware of the facts giving rise to his grievance as untimely and the case of OPSEU (Kavanaugh) and Ministry of Community and Social Services, GSB # 2007-0136 April 14, 2009 (Harris) in which the Board dismissed as untimely a grievance filed more than two months after the grievor became aware of the facts giving rise to his grievance. [23] Finally, the Employer relies on OPSEU (Lachance) and Ontario (Ministry of Community Safety and Correctional Services), 2017 CanLII 30326 (ON GSB) in which the GSB commented on the factors that are considered in the course of determining whether or not it will exercise its discretion to extend the time limits for the filing of a grievance. The following excerpt was highlighted by the Employer in its submissions: - 13 - [67] Factors taken into account in this regard include the length of the delay; whether the delay was at the beginning or later in the grievance procedure; the nature of the grievance; whether the grievor had a reasonable explanation for the delay; whether the Employer suffers prejudice by the granting of an extension. Some arbitrators also have considered, as noted by Arbitrator Liang in Re Government of British Columbia (supra), “the degree of force with which the parties have given contractual expression to the time limits. [68] Turning first to the matter of the length of the delay. In considering this factor I have taken into account that the delay at issue is at the outset of the grievance procedure. That is to say that the Employer would have had at least a two-month period and perhaps as long as a three- month period where it thought Mr. Lachance was not advancing a complaint under the grievance procedure of the Collective Agreement. A delay at the front end of the grievance procedure is more problematic for an Employer because it has not been put on notice – in any way – that there is a live dispute. Memories can fade and documents simply not kept which in hindsight might have been important. Vice Chair Gray in Re Mazara said, at paragraph 59, that “a delay at the initial stage weighs more heavily against an exercise of discretion to extend time limits, all other things being equal, than a delay at the later stages of the grievance process”. [69] Further, the Board jurisprudence – much of which was put before this Board and cited above - has made clear that a two-month delay – particularly at the outset of the grievance procedure – is a “significant” or “substantial” delay. Vice Chair Gray, in Re Smith et al was considering an allegation of an improper level of pay for a group of employees. He stated, beginning at paragraph 17: As I have already noted on the view most favourable to the grievors the delay is about three months beyond the already ample time frame provided by the collective agreement for bringing a complaint to the grievance process. This is a substantial delay. A bar based on such a delay should not be described as merely “technical”. These grievances are objectively more important to the grievors than a grievance about a day’s pay or minor discipline would be, but less important than a discharge grievance would be. [70] The nature of the dispute is another factor to take into account. I appreciate that the nature of the grievance at issue is discrimination and harassment and those allegations are not inconsequential. Indeed, I have given this factor much consideration. However, I cannot extend the time limits of this grievance merely because harassment and discrimination are at issue. If the fact that discrimination and harassment have been alleged was sufficient grounds for an extension, timeliness - 14 - would become somewhat meaningless in a significant number of grievances before this Board. In Re Wilson Vice Chair Abramsky was considering a timeliness objection regarding a grievance that alleged, “inhumane treatment” by various management representatives during an absence due to illness. In her decision Vice Chair Abramsky contemplated whether the nature of the grievance was sufficient reason to extend the time limits. At paragraph 52: The main thrust of the Union’s argument was that the nature of this grievance compelled a hearing on the merits. There is no question that the October 1996 grievance involves very serious allegations and very serious issues. The grievance essentially claims that the employer, through its actions, ruined Mr. Wilson’s mental and physical health to the extent that he can never work again. But the nature of the grievance is only one factor, and it simply cannot, by itself, lead to a conclusion that there are reasonable grounds to extend the 30-day time limit negotiated by the parties in their collective agreement for a five-year period. [24] The Union submits that the Employer’s motion ought to be dismissed. It argues the particulars are adequate to establish a prima facie case that the grievor has been harassed. [25] The Union refers to the definitions of harassment in the Occupational Health and Safety Act (“OHSA”) and the Collective Agreement. Section 1(1) of the OHSA provides as follows: “workplace harassment” means, (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment; [26] Article 3.3 of the Collective Agreement provides: 3.3 The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome. - 15 - [27] The Union rejects the Employer’s position that the evidence to be adduced to establish a course of conduct against the grievor should be limited. The Union argues that all of the incidents particularized fall squarely within the three-year guideline that has been adopted by the GSB to balance the grievor’s ability to have a sufficient window of time to show a course of conduct with any potential prejudice to the Employer. The Union states that there is no principle that limits a grievance that concerns harassment to allegations against one individual. In this case, the Union argues, two people who occupied the role of manager over 18 months both engaged in conduct that amounts to harassment of the grievor. [28] The Union argues that the GSB takes its jurisdiction from the grievance itself which, in this case is framed broadly and is not restricted to a single factor. There is no factor or statement in the grievance or case law relied upon by the Employer that would suggest this grievance is limited to the actions of Ms. Coleman. The Union submits all of the evidence should be heard that is probative to the claim of harassment. The Union disputes that any of the incidents are irrelevant and relies on all incidents to support the central issue in this case; namely that the grievor’s managers, Ms. Ives and Ms. Coleman, engaged in harassment of the grievor. The Union further submits that assessments of relevance are better done in the course of the hearing and the GSB should reject the Employer’s attempt to deprive the Board of probative evidence at the outset. [29] The Union states that the thrust of the Employer’s argument is that an earlier grievance should have been filed. If the GSB accepts that argument the Union argues it is admissible pursuant to the three-year rule, and, in the alternative, the GSB ought to extend the time limits for the filing of the grievance. [30] Recognizing that one of the factors that is considered when the Board is asked to extend the time limits for the filing of the grievance is why a timely grievance was not filed, the Union called the grievor to testify. [31] The grievor testified that she did not file a grievance earlier as there was conflict and division in the office and there had been a discussion by managers to bring in a company to mediate. She knew a date was going to be set in the future. Ms. Ives was originally given a date to leave and go elsewhere and then the date was extended, the grievor believes, three times. [32] The grievor testified she was concerned that she would experience retribution by Ms. Ives and potentially lose her position if she filed a grievance against her. This fear arose out of the treatment she had received from Ms. Ives as well as an incident concerning a manager in the unit by the name of Jason. The grievor testified that Jason brought a grievance against Ms. Ives and was out the door the same day. The grievor stated that Jason told her it was his own choice to leave. The grievor’s description of events is that Jason had another permanent position elsewhere. One day, Jason told the grievor Ms. Ives had humiliated him in front of a class; when he was going up to give his session, Ms. Ives said to him: “What are you doing? We don’t need your help. Sit back down.” Jason told - 16 - the grievor he had another job to go to and he was not going to take this. Jason then went to Ms. Ives’ office and shut the door. The grievor heard Jason and Ms. Ives talking very loudly. Jason came out and said he was not coming back and he never did. The grievor thought the same would happen to her and she did not have another job to go to. The grievor was later told by Ms. Ives that she had talked to the grievor’s manager and wanted him disciplined. After Ms. Ives left in September 2017 she went to the facility where Jason was working and took a tour. The grievor is aware of Ms. Ives taking this tour as Jason filed a grievance as a result and the Union contacted the grievor to see if she had anything to add. The grievor testified that she was afraid that, if she filed a grievance against Ms. Ives, the same would happen to her tenfold and she would not have another job to go to. [33] When asked why she did not file a grievance after Ms. Ives left in September 2017, the grievor testified she was aware a W orkplace Assessment was to take place and thought it might solve the issues. She thought things would get better. [34] In cross-examination the grievor testified that, after Ms. Ives called her Jeanie- Weanie the grievor went into her office and firmly told her “don’t you ever call me that again.” [35] Following the grievor’s evidence, the Union’s continued with its submissions. The Union reviewed the incidents set out in the particulars concerning Ms. Ives highlighting why each was inappropriate and the effect it had on the grievor. In respect of the WDHP complaint in which the grievor and numerous other employees were named as a respondent, the Union states that Ms. Ives did not tell her the complaint had been resolved on May 26, 2017 until July 6, 2017. The Union states that, in the fall, when Ms. Coleman became Ms. Ives’ manager the pattern continued, her relationships in the workplace were damaged. After waiting and giving other avenues a chance to improve matters, the grievor decided to raise the harassment by way of a grievance. [36] Turning to the mediation, the Union submits that Ms. Coleman first told the grievor that other employees had raised concerns about her through the investigation and then later told the grievor that the vendor suggested mediation. As a result of that, the grievor’s workplace relationship with others deteriorated. The Union states the grievor was misinformed about who had problems with her in the workplace. [37] The Union relies on the grievor’s evidence as to why she did not file a grievance, noting the grievor’s testimony that she wanted to deal with the problems through a different process as she was afraid of retribution. She saw how Jason had been treated and was concerned Ms. Ives would find a way to retaliate against her if she spoke out. The Union asks that the time limits be extended to permit the grievor to rely on the allegations against Ms. Ives. [38] Turning to the particulars, the Union argues it is important to keep in mind what they are. Particulars are the who, what, where and when of the allegations relied - 17 - upon. They are not required to set out every detail in advance. In respect of the test for establishing a prima facie case, the Union argues that the test set a very low bar for a hearing to proceed; the Union merely needs to plead facts capable of supporting the violation alleged. [39] The Union relies on OPSEU (Couture et al) and Ontario (Ministry of Government Services) 2011 CanLII 10922 (ON GSB) for its statement of when a prima facie motion would succeed. At paragraph 6, the decision states: A prima facie motion would succeed if the facts asserted in support of the grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged. [40] The Union also relies on the following quote from Whan et al., 2003-3446 (Dissanayake) concerning the test on a non-suit motion, set out at paragraph 16 of OPSEU (Gauntlett) and Ontario (Ministry of Finance) 2008 CanLII 70504 (ON GSB): The test on a non-suit motion [16] The parties’ counsel agree that the principles identified in Whan et al., 2003-3446 (Dissanayake) are applicable in this non- suit motion: 1. The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to such an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case. 2. In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities. 3. In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side. 4. In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion. 5. In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered. 6. In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence. - 18 - 7. Where a non-suit motion is granted a written decision with reasons will follow. However, where a motion is denied, no reasons, oral or written, will be issued. [17] The test to be applied is illuminated by the decision in Gareh, 1998-1665 etc. (Brown), where the parties agreed that my task in ruling on a motion for non-suit is not to determine whether the union has proven its case on the balance of probabilities, at least not in the way I would make that sort of determination after both sides had closed their cases and that at this stage in the proceedings the credibility of the union’s witnesses should not be scrutinized and all inferences reasonably supported by direct evidence should be made in favour of the union and grievor but disagreed about whether there had to be “sufficient evidence” or merely “some evidence.” In the course of resolving that dispute Vice-Chair Brown made some useful observations at pp. 4-7 of his decision about the test and what courts have said about it: The standard of “sufficient” evidence was adopted by the Ontario Court of Appeal in Hall v. Pemberton (1974), 1974 CanLII 468 (ON CA), 5 O.R. (2d) 438, page 439, where the Court quoted with approval the following passage from Parfitt v. Lawless (1872), 41 L.J.P.&M. 68: I conceive, therefore, that in discussing whether there is any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue. (pages 72; emphasis added) The only reasonable interpretation of “sufficient to support the issue” is adequate to allow a jury to rule in favour of the party resisting the non-suit. In other words, a judge ruling on a non-suit motion in a jury trial, assuming witnesses to be credible and making all reasonable inferences in favour of the party resisting the non-suit, must determine whether the evidence is “sufficient” in the sense that it could lead a properly instructed jury to rule in favour of that party. The standard of “sufficient” evidence was again applied by the Court of Appeal in Re Gallant and Roman Catholic Separate School Board of District of Sudbury (1985) 1985 CanLII 2248 (ON CA), 56 O.R. (2d) 160: - 19 - In dealing with such a motion, a judge must decide whether sufficient prima facie evidence has been presented by the applicant. At this stage, the plaintiff [opposing the motion] is entitled to have the facts interpreted in the manner which is most favourable to him or her: Hall v. Pemberton... (page 167; emphasis added) In advocating a lower standard of “some evidence,” counsel for the union relies upon the decision of the Divisional Court in Ontario v. OPSEU (Cahoon), (1990), 37 O.A.C. 218 quashing a decision of the Grievance Settlement Board which had allowed a motion for non-suit brought by the union in that case. The Court wrote: The Board began by setting out its understanding of a non-suit. While it held that a prima facie case had not been made out, its reasons make it clear that it believed a prima facie case had to be established on the balance of probabilities. This is, of course, incorrect. .... The standard of proof on a non- suit is that of a prima facie case, not a case on the balance of probabilities. If a prima facie case has been shown a nonsuit must not be granted. It is erroneous to determine a non- suit on the basis of the higher onus of the balance of probabilities. A prima facie case is no more than a case for the defendant to answer. ... A motion for non-suit in modern practice is made by the defendant, contending that the trier of fact should not proceed to evaluate the evidence in the normal way, but should dismiss the action. The defendant must satisfy the trial judge that the evidence is such that no jury acting judicially could find in favour of the plaintiff. The decision of the judge in both jury and non-jury actions is a question of law. Sopinka, The Trial of An Action, p. 124 (Butterworths). The “normal way” in a civil action would be on the balance of probabilities. Where a judge is sitting with a jury, the issue is whether there is some evidence to support the claim. If there is, the case goes to the jury. If there is none, it does not. (emphasis added) - 20 - The Divisional Court’s comment that a motion for non-suit should be dismissed if there is “some evidence to support the claim” must be interpreted in the context of the immediately preceding passage from Sopinka’s The Trial of an Action saying the issue to be determined by the judge is whether “no jury acting judicially could find in favour of the plaintiff.” Based upon the Divisional Court’s apparent approval of this passage, I understand the Court’s reference to “some evidence to support the claim” to mean evidence which could lead a jury (or some other trier of fact) to rule in favour of the party opposing the motion, if the trier of fact found that party’s witnesses to be credible and made all reasonable inferences in its favour. This standard is no different in substance than the test of “sufficient” evidence utilized by the Court of Appeal in the Hall and Gallant cases. In the case at hand, I must decide the motion for non-suit as well as serve as the trier of fact. At this stage, my task is to determine whether the evidence presented could be sufficient to lead me to rule in favour of the union, if I assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence. It is not logically possibly to make this determination without taking into account the applicable standard of proof which is on the balance of probabilities. The question to be decided is whether I could rule that the union has proven its case on the balance of probabilities, if its witnesses are believed and it is granted the benefit of all reasonable inferences. The decision-making process on a motion for non-suit cannot ignore the standard of proof, but this process entails an application of that standard which differs markedly from the way it would be applied after both parties had closed their case. At that point, in determining whether the union had proven its case on the balance of probabilities, I would scrutinize the credibility of witnesses, and I would not draw inferences so as to resolve doubts in favour of the union, because the benefit of doubt should not be granted to the party bearing the onus of proof. [41] The Union argues that the foregoing excerpt stands for the proposition that, when assessing whether the pleadings make out a prima facie case, the standard of proof is lower than balance of probabilities. All doubts must be resolved in favour of the Union and all reasonable inferences in favour of the Union must be drawn. [42] The Union argues that the Employer engaged in a course of conduct that amounts to harassment. The grievance is against the Employer not against a manager. [43] The Union submits that it is clear, with the actions catalogued in the particulars, someone outside looking in would say these actions are a departure from reasonable conduct and would be unwelcome. The Union relies on the following definition of harassment set out in Toronto Transit Commission v. A.T.U. (2004), 132 (4th) 225 at paragraph 243: - 21 - Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment. [44] It is clear, according to the Union, that the particulars establish a course of events that would be unwelcome and inherently degrading. The particulars are capable of establishing a violation of Article 3. [45] Turning to the issue of timelines, the Union submits the grievance was filed in a timely manner. The last incident referred to in the particulars occurred only nine days prior to the grievance filing date. Further, the Union relies on Hotel-Dieu Grace Hospital, supra, discussed above in the context of the Employer’s submissions. The Union argues that it is implicit from that decision that all relevant evidence in the preceding three-year period is to be admitted. The three- year period was arrived at as achieving a balance between the Union’s need, in many harassment cases, to establish a pattern of conduct, and the prejudice caused to the Employer by requiring it to respond to allegations from the past. The Union points out that the Employer has asserted no prejudice in the instant matter and accordingly there is no reason to depart from the three- year rule. The Union relies on Louis, supra, in which the GSB applied the three- year rule to determine the timeliness of the events particularized in support of a harassment grievance. While the Louis decision recognizes exceptions to the rule, those exceptions do not permit probative evidence to be excluded. To do so would prejudice the Union. Allowing the evidence will not unduly protract the hearing as it is a well-documented series of events. [46] If the GSB concludes that there should have been two separate grievances, the Union asks the Board to exercise its discretion to extend the timelines concerning the incidents involving Ms. Ives. The Union relies on Becker Milk Company Ltd. and Teamsters Union, Local 647 (1978), 19 L.A.C. (2d) 217 wherein the Arbitrator made the following comments about the exercise of discretion under, what was then, section 37(5a) of the LRA: The exercise of the equitable discretion vested in an arbitrator under s.37(5a) [now 48(16)] of the Act requires a consideration of at least three factors. These are: (1) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance. If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time-limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exists for an extension of the time-limits. …The purpose of the section is to alleviate against technical bars. If the offending party has been negligent in its process of the grievance but the delay has been of a short duration an arbitrator would be permitted to rely on the - 22 - short period of delay as constituting reasonable grounds for an extension. If the grievance involves the termination of an employee, as distinct from some lesser form of discipline, this is also an equitable consideration which must be taken into account…. [47] The Union argues the grievor has provided a reasonable explanation for the delay; she had seen what had happened to Jason and feared she would suffer repercussions if she were to file a grievance against Ms. Ives. She knew of the upcoming Workplace Assessment and hoped it might result in changes. When no changes came about, she filed a grievance. The Union submits the grievor should not be penalized as a result; the most vexatious aspects of her complaint should not be struck. The Union argues that the length of the delay is not a mathematical equation and the grievor should not be penalized for trying to solve the problem short of coming to the Board. The Union further argues that the issues at stake are important; the legislature has deemed harassment so important it has enacted legislation, the OHSA, to protect employees. The Employer has not asserted any prejudice. As said in Becker Milk, supra, the jurisdiction to extend time limits was designed to alleviate against technical bars. The Union submits, when all of the factors are considered, the extension of time should be granted. [48] The Union refers to Greater Niagara General Hospital v. Ontario Nurses’ Association (Pagonis Grievance) (1981), 1 L.A.C. (3d) 1 in which the following list of factors to be considered when considered whether to extend time limits was adopted: i. The nature of the grievance. ii. Whether the delay occurred in initially launching the grievance or at some later stage. iii. Whether the grievor was responsible for the delay. iv. The reasons for the delay. v. The length of the delay. vi. Whether the Employer could reasonably have assumed the grievance had been abandoned. The Union argues that the most important fact is that the grievor was trying, during the period of the delay, to have the issue addressed. [49] Lastly, the Union relies on Royal Crest Lifecare Group v. Service Employees International Union, Local 204 (Grossett Grievance) (2000), 91 L.A.C. (4th) 389 for the proposition that, the “prejudice” the Board is to consider, is the prejudice the delay has caused to the Employer’s ability to defend its position, not any exacerbated damages. The Union relies on the following excerpt from paragraph 35: No evidence was led to show that the Employer would be substantially prejudiced by such relief. The Employer submitted in argument that it would be prejudiced due to its investment in recruiting and training a replacement for the grievor. There is a distinction to be - 23 - drawn, however, between the Employer’s liability in the event a grievance is successful on the merits, and prejudice attributable to the delay. The latter typically arises where a party’s ability to represent its position effectively in a hearing of the merits has been compromised because with the passage of time important evidence has been lost or can no longer be obtained, witnesses have become unavailable, or memories can no longer be relied upon. (See, for example, Standard Products, above.) Where, as here, the delay in question is relatively short it cannot be simply assumed in the absence of evidence that such considerations obtain. In the event that the grievance is successful in whole or in part, the Employer is arguably prejudiced to the extent of its liability for compensatory damages during the period of the delay. Consistently with the decisions in Becker Milk and Peterborough Civic Hospital, we therefore award that the Employer will not be held liable in damages to the grievor for any part of the period from the expiry of the collective agreement time limits for the filing of a grievance until April 5, 2000, when the written grievance was filed. On the basis, we find that the Employer is not substantially prejudiced by the extension. [50] The Union argues that prejudice needs to be proven and that has not happened in this case. Prejudice is not to be assumed. There is no suggestion any witness is incapacitated or not available. Ms. Ives is still in the employ of the Employer. [51] The Union asserts there is a prima facie case, all of the allegations fall within the three-year period preceding the grievance and, if it is decided the allegations concerning Ms. Ives are discrete allegations, the time period for the filing of those allegations ought to be extended. Analysis and Decision Does the three-year rule apply to the incidents involving Ms. Ives? [52] Harassment is somewhat unique in that it is rarely established based on a single isolated incident; harassment is generally established by demonstrating a series of events over a period of time. Such is recognized in the definition of harassment set out in section 1(1) of the OHSA and article 3.3 of the Collective Agreement wherein harassment is described as a “course of conduct.” If evidence of incidents that occurred more than 30 days before the filing of the grievance were not admissible on the basis that they were untimely pursuant to article 22.2 of the Collective Agreement, it would be very difficult for an individual to establish they had been subjected to harassment. Accordingly, the GSB has adopted what is referred to as the three-year rule pursuant to which evidence going back three years prior to the filing of the grievance is admissible. [53] The Union argues all of the incidents fall squarely within the three years preceding the grievance and there is no principle that limits a harassment - 24 - grievance to the conduct of a single person. The Union urges any assessment as to the relevance of evidence to be done in the course of the hearing. [54] I agree with the Union that a harassment grievance is not limited to the conduct of a single person. As argued by the Union, the “Employer” is the entity that employs the grievor, not individual managers. Harassment can arise as a result of conduct on the part of two or more persons. I further agree, that decisions as to the relevance of evidence are often best made during the course of a hearing as opposed to at the outset. However, where, as in this case, all but one of the incidents are being challenged on the basis they are irrelevant, and the remaining incident is being challenged as failing to make out a prima facie case, depending on the outcome of the motions, a hearing may not take place. Thus, in a case such as this one, it is more efficient and a better use of the parties’ resources, to deal with the evidentiary issue prior to beginning the hearing. [55] The three-year rule does not mean that evidence of every incident that occurred during the three years predating the filing of the grievance may be adduced. As stated in ICS Courier, supra: 25. …a rights arbitrator’s jurisdiction arises from the particular grievance being adjudicated. That is, the arbitrator is not embarking on a general inquiry as to whether the grievor has been subject to harassment throughout her employment with the Employer. Rather, as further stated in ICS Courier, evidence of discrete events is admissible to show that, while one single event is arguably not that significant, several such incidents “if proven and connected” could theoretically support an argument of a pattern of harassing behaviour. [56] The approach taken in ICS Courier was adopted by the GSB in Cooper #1, supra: [12] The three-year rule, however, does not provide a basis to expand the grievance before an arbitrator. It also does not render what would otherwise be irrelevant evidence relevant. Evidence is not admissible simply because it falls within the three years (or such other period as is appropriate in the circumstances), it must be relevant to proving the incident or incidents which form the basis of the grievance constitute harassment. [57] I agree with, and adopt, the approach set out in Cooper #1. The analysis to be conducted is: (1) what incident(s) forms the basis of the grievance? and; (2) do the prior incidents that the Union seeks to rely on help to establish that the incident that forms the basis of the grievance is part of a course of conduct that amounts to harassment? If the answer is yes, the evidence is admissible; if the answer is no, it is not admissible unless it is being adduced to provide necessary context. - 25 - [58] The incident that “forms the basis of the grievance” is the incident(s) that motivated the grievor to file the grievance and, in order to be timely, occurred within 30 days of the date the grievance was filed. It is in all likelihood the most recent incident. [59] In this case, the most recent incident involves Ms. Coleman. While there are numerous references to Ms. Coleman in the particulars, the only reference to Ms. Coleman that amounts to an allegation of harassment is the allegation that Ms. Coleman, on March 7, 2018, asked the grievor: “how she felt about participating in workplace mediation following other people coming forward and requesting mediation after the Workplace Assessment interviews.” According to the particulars, the grievor was later advised by Ms. Coleman that the mediation was not set up “following other people coming forward and requesting mediation” but rather was set up on the recommendation of the consultant. The particulars assert Ms. Coleman harassed the grievor when she left the grievor with the “impression” (the word used in the particulars) as to how the mediation came to be set up. Given the absence of any other particulars that allege harassment on the part of Ms. Coleman, this incident has to be the incident that forms the basis of the grievance. The grievance was filed in a timely manner in respect of this incident. [60] The particulars provide some explanation as to why the grievor considers this incident to amount to harassment. I understand the grievor to say that, had she known the mediation was recommended by the consultant, she would not have agreed to participate because she believes her participation in those circumstances would lead Ryan and Ms. Connor to conclude she had a problem with them and thereby cause damage to their relationship. According to the particulars, the setting up of the mediation resulted in a cooling of her relationship with Ryan and Ms. Connor. [61] As indicated above, this is the only incident in the particulars alleging harassment by Ms. Coleman, however, the particulars indicate that, before this incident, Ms. Coleman was helpful in resolving an issue the grievor had with Ryan and, after the incident, spoke to the grievor explaining it had not been her intention to cause difficulties between the grievor and Ryan or Ms. Connor, that she was trying to help with whatever it was that was in the consultant’s report, and went on to make suggestions as to what she could do to address the grievor’s concerns. [62] Having identified the incident that forms the basis of the grievance, I turn to consider whether the earlier incidents described in the particulars involving Ms. Ives are relevant. At the risk of being repetitive, in order to be relevant, they would have to be of assistance to proving (or disproving) that the incident that forms the basis of the grievance (the incident involving Ms. Coleman) was part of a course of conduct that amounts to harassment. In order to answer this question, I consider the timing of the alleged incidents and the nature of the allegations to be relevant. - 26 - [63] There are a number of incidents involving Ms. Ives set out in the particulars. The first was the incident when, in or about the week of November 21, 2016, Ms. Ives called the grievor “Jeanie Weanie” and unnecessarily, and in front of other employees, told her to convey information to her spouse with the comment “I am … only considering it because you are a nice person not him.” Next, on December 14, 2016, Ms. Ives is alleged to have made reference to a joke of a sexual nature in front of a new employee. Third, on January 9, 2017, Ms. Ives chuckled at a joke concerning the sight impaired told by an employee at a meeting and did not stop the employee or indicate to the employee that the joke was inappropriate. Fourth, knowing the grievor had a preference to eat only meat and vegetables, Ms. Ives ordered pizza for lunch. The only mention of Ms. Ives after the lunch incident is in connection with her conveying information to the grievor about the WDHP complaint filed by another employee in which the grievor was named as respondent. Ms. Ives is alleged to have told the grievor, on July 6, that the complaint had been resolved on May 22. Ms. Ives stated that she found out the complaint had been resolved on June 26. [64] The last of the allegations involving Ms. Ives occurred on July 6, 2017. The incident involving Ms. Coleman occurred on March 7, 2018. There is a gap of eight months between the last incident involving Ms. Ives and the only incident involving Ms. Coleman. A gap of that length strongly suggests that the events involving Ms. Coleman were not part of a course of conduct together with the incidents involving Ms. Ives. [65] The allegations involving Ms. Ives are of a much different character than the allegation involving Ms. Coleman. Ms. Ives, assuming the allegations to be true, made comments or jokes, over a period of time, that, considered from the perspective of a reasonable person, were insensitive and inappropriate. Her comments were unnecessary and harmful to the workplace environment. There is no business justification or explanation for her conduct. Ms. Coleman, on the other hand, was operating within the scope of her managerial responsibilities and communicating with the grievor in connection with a workplace matter. She was acting so as to further the resolution of workplace issues. She is not alleged to have unnecessarily and inappropriately poisoned the workplace; she is alleged to have left the grievor with the wrong impression that the grievor believes resulted in harm to her relationship with other employees. The particulars state Ms. Coleman told the grievor she did not understand what she had said would be harmful and that was not her intention. In order for incidents to be a course of conduct, one would expect to see some shared characteristics between the incidents. In this case, the only shared characteristic is that the grievor felt she was being harassed. That is not sufficient. [66] It is my determination, given the separation in time and difference in nature, evidence of what Ms. Ives did between November 21, 2016 and July 6, 2017 would not assist in deciding whether what Ms. Coleman did on March 7, 2018 was part of a course of conduct that amounts to harassment. It is my determination that evidence of the incidents involving Ms. Ives is not relevant to - 27 - the issue as to whether the incident that underlies the grievance amounts to harassment. Extension of Time [67] The Union asks that I exercise my discretion to extend the time limits so as to permit evidence of the incidents involving Ms. Ives to be adduced. I would note that the Becker Milk, supra, decision relied on by the Union is from 1978 and has been largely overtaken by more recent decisions expanding the list of factors to be considered (see: OPSEU (Lachance) and Ontario (Ministry of Community Safety and Correctional Services) 2017 CanLII 30326 (ON GSB)). Further, while the quote the Union relies upon from Becker Milk appears to suggest a rather formulaic approach to deciding whether or not to extend time limits, such an approach is not applied today. Currently, arbitrators consider all of the factors collectively and vary the weight given to any one factor depending on the facts before them. Further, the Becker Milk decision concerned a delay of only three weeks in the filing of a grievance concerning a termination. It is not, therefore, of precedential value in the matter before me. [68] The following factors are relevant to a determination as to whether the GSB will exercise its jurisdiction to extend the time limits set out in the Collective Agreement (see: Lachance, supra): i. The length of the delay ii. Whether the delay was at the beginning or later in the grievance procedure iii. The nature of the grievance iv. Whether the grievor had a reasonable explanation for the delay v. Whether the employer suffers any prejudice by the granting of the extension. [69] As set out above, the earliest incident involving Ms. Ives was in November 2016 and, reading the particulars in a fashion most generous to the Union, the most recent was on July 6, 2017. The grievance was filed April 21, 2018. The delay, at is shortest, is thus over nine months. The delay is longer than the delay in issue in Cross et al, supra (eight months); Berday, supra (four months) and Kavanaugh, supra (more than two months) where the GSB declined to exercise its discretion to extend time limits. In Lachance, supra, the Board stated: “… the Board jurisprudence – much of which was put before this Board and cited above – has made clear that a two-month delay – particularly at the outset of the grievance procedure – is a ‘significant’ or ‘substantial’ delay.” In Re Ministry of Northern Development and Mines and OPSEU (Smith) (2005) GSB# 2002-0243 (Mikus) a delay of “three months beyond the already ample time frame provided in the collective agreement for bringing a complaint” was described as a “substantial delay.” It was further stated: “A bar based on such a delay should not be described as merely ‘technical’.” I find nine months to be a significant delay. - 28 - [70] In addition to the delay being lengthy, the delay was at the beginning of the grievance procedure which is the most problematic stage for delay to occur (see: Lachance, supra, at paragraph 68). [71] Considering the nature of the grievance, harassment is a very serious allegation with potentially serious consequences and a grievance alleging harassment ought not to be lightly set aside. However, as stated in Lachance, supra, the fact that the grievance raises allegations of harassment is not, in and of itself, a reason to extend the time limits. It is also worthy of note that harassment is a health and safety issue. Health and safety issues are time sensitive and need to be addressed as quickly as possible. [72] Concerning whether the grievor has a reasonable explanation for the delay, the grievor testified that she did not file a grievance earlier as she was concerned that she would experience retribution by Ms. Ives. This fear arose out of the treatment she had received from Ms. Ives as well as an incident concerning a manager in the unit by the name of Jason. The grievor testified that Jason brought a grievance against Ms. Ives and was out the door the same day, however, her description of events is not consistent with this statement. The grievor’s description of events is that Jason had another permanent position elsewhere. One day Jason told the grievor Ms. Ives had humiliated him in front of a class; when he was going up to give his session Ms. Ives told him to go sit down. Jason told the grievor he had another job to go to and he was not going to take this. Jason then went to Ms. Ives’ office and shut the door. The grievor heard Jason and Ms. Ives talking very loudly. Jason came out and said he was not coming back and he never did. The grievor was later told by Ms. Ives that she had talked to the grievor’s manager and wanted him disciplined. After Ms. Ives left in September 2017 she went to the facility where Jason was working and took a tour. The grievor is aware of Ms. Ives taking this tour as Jason filed a grievance as a result and the Union contacted the grievor to see if she had anything to add. The grievor testified that she was afraid that, if she filed a grievance against Ms. Ives, the same would happen to her tenfold and she would not have another job to go to. [73] When asked why she did not file a grievance after Ms. Ives left in September 2017, the grievor testified she was aware a Workplace Assessment was to take place and thought it might solve the issues. [74] I do not accept that the nature of the allegations the grievor has made against Ms. Ives would result in her being fearful of repercussions if she were to file a grievance. As indicated above, the incidents involving Ms. Ives are unprofessional and demonstrate insensitivity, but they do not support a conclusion that Ms. Ives would subject the grievor to repercussions if the grievor filed a grievance. The grievor did not say when the incident involving Jason occurred and thus it cannot be said to have occurred before any or all of the incidents involving Ms. Ives. In any event, having regard to the description of the event given by the grievor, Jason told the grievor he had another job to go to and was not going to take this before he went in and spoke to Ms. Ives. Jason’s - 29 - departure was clearly not the result of his having filed a grievance as he left the same day the incident occurred. He would not have had time to file a grievance before he left. There is no evidence that Jason filed a grievance and was removed from the workplace by Ms. Ives as a result. Finally, the grievor testified that, after Ms. Ives called her Jeanie Weanie the grievor went into Ms. Ives’ office and told her firmly never to call her that again. This testimony does not support the grievor’s testimony that she was afraid of repercussions from Ms. Coleman. It is my determination that the grievor did not have a reasonable explanation for the delay. [75] Turning to the question of prejudice, I do not agree that prejudice is not to be assumed but rather must be proven by the Employer. The jurisprudence establishes that there is an inherent labour relations interest in having grievances brought within a reasonable time frame and a failure to do so is prejudicial to the conduct of a fair hearing and workplace harmony. The case of Sault College, supra, relied upon by the Employer, is a recent decision that considers the issue in the context of a grievance alleging harassment. The quote from Sault College set out at paragraph 19 above is instructive. As stated by the arbitrator, the harm caused by delay in the labour relations context has long been recognized: 37. In my view, when striking a balance, an arbitrator should also keep in mind the time honoured principle of labour relations that grievances about alleged violations of the collective agreement should be brought within a reasonable time after the matter in issue arose (see U.E. v. Canadian General Electric Co. (Davenport Works) (1952), 3 L.A.C. 980 (Ont. Arb.) (Laskin) [76] The arbitrator spoke of the fact that delay undermines the parties’ ability to gather and adduce evidence, which the arbitrator commented most cases seemed to focus on, and then turned to an additional negative impact: “delay also impacts the ability of the parties to properly address, in a timely fashion, issues and concerns as they arise.” Further, it was considered a “danger to present relations by permitting a grievance to drag up ghosts from the past” when the Employer was unaware of the matters of concern at the time they arose and is no longer in a position to address them. [77] While the Employer has not asserted it has suffered specific prejudice, it is evident the Employer has been denied the ability to look into the allegations at a point in time when memories are at their freshest and evidence most readily available. Further, the Employer has been denied the ability to respond to the problems in a timely and constructive way. Finally, a hearing at this time into the issues concerning Ms. Ives will drag up old complaints that have long lain dormant. [78] Considering all of the factors discussed above, I decline to exercise my discretion to extend the time limits. - 30 - Prima Facie Case [79] The Employer asks that the allegations concerning Ms. Coleman be dismissed on the basis that they do not establish a prima facie case. [80] The Union relies on the quote from Whan et al, set out at paragraph 16 of Gauntlett, supra, for the proposition that, when assessing whether the pleadings make out a prima facie case, the standard of proof is lower than the balance of probabilities. While I agree that, at paragraph 16.2, it is stated that the standard of proof “is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities” I would also note that the arbitrator was describing principles that had been agreed to by the parties. Further, the decision goes on to state that the test to be applied is “illuminated” by the decision in Gareh, 1998-1665 etc. (Brown) that concluded: At this stage my task is to determine whether the evidence presented could be sufficient to lead me to rule in favour of the union, if I assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence. It is not logically possibly [sic] to make this determination without taking into account the applicable standard of proof which is on the balance of probabilities. The question to be decided is whether I could rule that the union has proven its case on the balance of probabilities, if its witnesses are believed and it is granted the benefit of all reasonable inferences. [81] Thus, the Gauntlett decision itself does not stand for the principle that the standard of proof in a prima facie case motion is “lower than the standard of proof on a balance of probabilities.” [82] The test that is applied by the GSB in order to determine whether there is a prima facie case is set out in OPSEU (Martin et al) and Ontario Ministry of Community and Social Services) 2015 CanLII 60449 (ON GSB) as follows: The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support the conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it has provided particulars which, if true, would result in a finding a breach on the application of that theory, the motion should be dismissed. [83] To paraphrase the test set out in Martin et al., the process to be followed to determine whether there is a prima facie case is to: (1) identify the Union’s legal - 31 - theory; and (2) determine whether the facts particularized could be sufficient to result in a finding that there has been a violation of the collective agreement in the manner alleged. [84] The Union’s legal theory is that the grievor experienced harassment and a poisoned work environment as a result of the actions of Ms. Coleman as particularized in paragraph 4 subparagraphs I – L above. [85] In Re Province of British Columbia (1995) 49 L.A.C. (4th) 193 Arbitrator Liang determined that the term harassment does not apply: … where there is no intent to be harmful in any way, unless there had been a heedless disregard for the rights of another person and it can be fairly said, “You should have known better”. [86] And in Re Nunavut and PSAC (2006) 151 L.A.C. 35 Arbitrator Knopf stated: The fact that (the grievor) honestly felt that she was being harassed, and the fact that she suffered greatly, is not enough to make this claim succeed….. The grievance is against the Employer. This grievance can only succeed if the objective evidence supports a finding that there has been abusive conduct as a result of the improper use of a power or departure from a reasonable norm. ……. [87] The particulars establish that the grievor felt she was harassed by Ms. Coleman and suffered greatly but, as stated in Re Nunavut, supra, that is not enough. The cases stand for the proposition that harassment is to be assessed objectively and involves a heedless or improper use of power, a departure from the norm, or a reckless disregard for the rights of another person. Arbitrator Liang in Province of British Columbia, sums it up as, “You should have known better.” The incident involving Ms. Coleman occurred in the context of her acting within the scope of her management responsibilities at the behest of a report prepared by a consultant brought into the workplace to do a Workplace Assessment. Ms. Coleman asked the grievor if she would participate in mediation and left the impression it had been requested by other employees. As the particulars indicate Ms. Coleman stated she was trying to help and did not intend to harm the grievor’s relationship with her co-workers. It is not a case where one looks at the facts and says, she should have known better. I find that the particulars, assumed to be true and provable, could not establish that the incident involving Ms. Coleman amounts to harassment. [88] I have dismissed the incidents involving Ms. Ives on the basis they are not relevant to an assessment of whether the incident involving Ms. Coleman is harassment and have declined to extend the time limits set out in the Collective Agreement in order to make the incidents involving Ms. Ives timely so that they can stand on their own. I have dismissed the incidents involving Ms. Coleman on the basis that the particulars, assuming them to be true, could not make out a case of harassment. - 32 - [89] As a result of the determinations made above, the grievance is dismissed. Dated at Toronto, Ontario this 3rd day of February, 2020. “Diane L. Gee” Diane L. Gee, Arbitrator