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HomeMy WebLinkAbout2019-2467.Gray et al.21-02-26 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2019-2467 UNION# 2019-0506-0011 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gray et al) Union - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE Diane L. Gee Arbitrator FOR THE UNION Georgina Watts Morrison Watts Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING January 18, 2021 - 2 - Decision [1] This matter is a grievance in which Transport Enforcement Officers (“TEO”) employed by the Ministry of Transportation (“Employer” or “MOT”) advance a number of claims including one referred to herein as “survey stops.” It is alleged that the survey stops violate the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”), section 9 of The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“Charter”), and the Collective Agreement. The MOT has brought a motion to have this portion of the grievance dismissed on the basis that the Grievance Settlement Board (the “GSB” or “Board”) lacks jurisdiction. This decision deals solely with MOT’s motion. THE ALLEGATIONS OF FACT [2] TEOs have been directed by the Employer to stop and/or redirect commercial drivers for the purposes of asking them to participate in a survey conducted by a third- party. [3] The HTA authorizes TEOs to pull commercial drivers over and redirect them for the purposes of doing an inspection. [4] Section 9 of the Charter grants everyone the right not to be arbitrarily detained. [5] The Collective Agreement contains a management rights clause that gives the Employer the exclusive right to assign work subject to the other provisions of the collective agreement. The Collective Agreement contains a provision that provides employees can only be disciplined for just cause. THE EMPLOYER’S SUBMISSIONS [6] The Employer relies on the case of Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 in which Mr. Borowski’s Charter challenge was struck down on the basis of mootness, but also on the basis that Mr. Borowski did not have standing to advance a breach of the Charter that was not his own. The reasons of the Supreme Court of Canada are set out at page 366-67 as follows: By virtue of s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982, there are two possible means of gaining standing under the Charter. Section 24(1) provides: 24. (1) Anyone whose rights or freedoms as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. - 3 - In my opinion s. 24(1) cannot be relied upon here as a basis for standing. Section 24(1) clearly requires an infringement or denial of a Charter- based right. The appellant's claim does not meet this requirement as he alleges that the rights of a fetus, not his own rights, have been violated. [7] The Employer also relies on R. v. Inco Ltd. 2001 CanLII 8548 (ON CA), a decision of the Ontario Court of Appeal, in which it was determined that Inco Ltd. did not have standing to advance a claim for relief based on the alleged violation of, inter alia, the section 9 Charter rights of its employees. The Employer submits, having regard to Borowski and Inco Ltd., the TEO’s cannot advance a claim that the rights of the commercial vehicle operators have been violated. Nor, the Employer argues, can the Union do so indirectly, by arguing that the assignment of the work to its members is unlawful because it results in a violation of the rights of the operators. By framing the issue in this fashion, the Union is attempting to have the Board make the very determination the Union lacks standing to obtain. [8] The Employer relies on Ontario v. OPSEU, 2012 ONSC 2078, (herein referred to as “CPIC - ONSC”) a judicial review of Ontario Public Service Employees Union (Union) v. Ontario (Government Services), 2011 CanLII 23158 (ON GSB) (herein referred to as “CPIC - GSB”). In brief, the decision of the Supreme Court of Canada in R. McNeil, [2009] 1 S.C.R 66, established that the Crown was obliged to obtain serious misconduct information pertaining to the police officer involved in an investigation, and disclose such to an accused, where the information could reasonably impact on the prosecution. “Serious misconduct information” includes the officer’s criminal record, if any. The Crown determined it was subject to the disclosure obligations established by R. v. McNeil in respect of inspectors within the Ministry of Labour conducting prosecutions under the Provincial Offences Act for violations of the Occupational Health and Safety Act and the Employment Standards Act. As a result, in certain circumstances, the Crown initiated a Canadian Police Information Centre (“CPIC”) check of employees employed as inspectors without the employees’ prior consent. A grievance was filed and, in CPIC - GSB, it was determined that R. v. McNeil did not oblige the Crown to request a CPIC check of Ministry of Labour inspectors, and that such inquiries, in the absence of the inspector’s consent, did not take account of the inspector’s privacy interest. The CPIC checks, absent the employees’ permission, was found not to be an appropriate exercise of management rights under the Collective Agreement. On judicial review, the Crown argued the Board exceeded its jurisdiction in purporting to interpret and limit the Crown’s disclosure obligations in conducting prosecutions. [9] The Employer relies on the following comments of the Ontario Superior Court of Justice: (i) Standard of Review [15] This issue can be characterized as an exercise in defining the jurisdictional boundary between competing tribunals - the Grievance Settlement Board and the Ontario Court of Justice. Though the Ontario Court of Justice has not yet specifically ruled on whether the Crown disclosure obligations set out in R. v. McNeil apply to prosecutions under the Provincial Offences Act, it certainly has the jurisdiction to do - 4 - so. In fact, for several reasons, the Ontario Court of Justice probably would be the more appropriate forum in which to determine the issue. For one thing, the criminal defense bar has had no voice in the decision of the Grievance Settlement Board, nor in this judicial review application. [16] Assuming, without necessarily deciding, that the Board has the jurisdiction to decide this issue, the Crown's obligations as prosecutor are outside the specialized expertise of the Grievance Settlement Board and a question of law of central importance beyond the labour relations context. [17] The standard of review on this issue is correctness. … [19] At paragraph 19 of the Board's decision, the GSB Arbitrator observed "clearly, I have no jurisdiction to control the prosecutions arising under the Occupational Health and Safety Act, or the conduct of the Crown in relation thereto. Those are matters that lie properly within the jurisdiction of the courts that possess the authority to deal with such matters." [20] However, despite recognizing that it did not have the authority to decide matters relating to the Crown’s conduct of prosecutions, the Board proceeded to do just that. [21] It is difficult to understand how the Crown's disclosure obligations in its capacity as a prosecutor could possibly "arise under the Collective Agreement". If the Crown has disclosure obligations in the context of prosecutions under the Provincial Offences Act, it is surely beyond the capacity of the parties to vary or dispense with those obligations under the terms of a collective agreement. If the Crown has a legal obligation to an accused, no collective agreement can avoid that obligation. … [28] The Crown must exercise its own discretion in deciding what information falls within the parameters of McNeil and what does not, … …. [33] The determination that the Board erred in its determination of the Crown's obligations as prosecutor is sufficient to support a declaration that the Crown is permitted to conduct CPIC checks in furtherance of its disclosure obligations without the need to first obtain the consent of the employee or the respondent Union. Issue No.2 [34] What procedural safeguards, if any, must the Crown afford to its employees in order to meet its obligations under the Collective Agreement? (i) Standard 0f Review [35] Recognizing that the Crown is before the court, and was before the GSB, in its dual capacity as employer and as prosecutor, it was clearly within the Board's mandate to interpret the Collective Agreement so as to address the Crown's - 5 - obligation qua employer. This issue does engage the core expertise of the Board. Its determinations in that regard are entitled to deference. [10] Having regard to the comments of the Ontario Court of Justice in connection with its determination as to the applicable standard of review, the Employer argues that the determination as to whether the survey stops are unlawful under either the Charter or the HTA certainly falls within the jurisdiction of the courts, and the courts would be the more appropriate forum for such a determination to be made. The Employer points to the fact that those whose rights are affected by having been stopped under the authority of the HTA are not participants in this grievance. Further, the Employer points to the fact that the standard of review would be correctness as the Board would be determining issues outside of its specialized jurisdiction and beyond the labour relations context. [11] Turning to the Court’s comments at paragraph 19, the Employer argues the Court agreed with the Board’s own determination that it lacked jurisdiction to control prosecutions under the OHSA and found the Board to have done so when it enquired into and made determinations in respect of the Crown’s disclosure obligations. [12] The Employer submits that, what the Union is asking in this case, is that the Board assess the rights of a member of the public to determine if this conduct is unlawful; interpret the Charter in relation to the objectives of the Ministry and interpret the HTA to determine if it somehow precludes this activity. As the Court has said, these activities relate to the Ministry's activities as a regulator, not as an employer. These activities do not relate to the collective agreement, the rights of employees, or the Union. As the Court said in CPIC - ONSC, it is difficult to understand how the Crown’s regulatory function could arise under the collective agreement. The Union submits this activity has been ongoing since 2013 and yet no Court has found it to be unlawful. The Employer argues that the Union, is asking this Board to be that court because no member of the public has come forward to challenge it. That is not appropriate, and the issue is beyond the Board’s jurisdiction. [13] The Employer further submits that, in Inco Ltd., supra, the employees involved were Ministry of the Environment employees who were engaged in regulatory functions. It is well known that the courts will, from time to time, find a regulator to have exceeded its jurisdiction. The issue is raised by a defendant asserting in court that the regulator breached an individual’s Charter rights or lacked statutory authority to engage in the activity. The Employer argues, the Union is asking the Board to take the place of the court. It is not up to an Inspector to say they are not going to do their assigned work because they think it is illegal and thereby have the matter proceed before an arbitrator. The Union is asking the GSB to sit, as the Court of Appeal did in Inco Ltd, and that it do so any time an inspector, investigator, or enforcement officer might think something they are assigned to do might be afoul of the Charter or their own legislation. Employees, the Union argues, get to say, “I am not going to do that, and I am going to have the arbitrator decide if I have to.” The Union would have employees take on board issues that a member of the public ought to be pursuing and have them decided in a forum where the person whose rights are being infringed is not a participant. - 6 - [14] The Employer relies on OPSEU (Dobroff) and Ontario (Ministry of the Environment) 2005 CanLII 55183 for its finding that the Board does not have jurisdiction over classification grievances. The Employer further relies on Dobroff , OPSEU (Wong) v. Ontario (Ministry of Government Services), March 5, 2012 (Dissanayake); OPSEU (Ashley) v. Ontario (Ministry of Community, Family and Children’s Services), November 5, 2003 (Abramsky); OPSEU (Lesieur et al.) v. Ontario (Ministry of the Environment), December 14, 2005 (Briggs) in support of its position that the Board’s jurisdiction to review the Employer’s exercise of a management right depends on the existence of a provision in the collective agreement which might be adversely affected by management’s action; there is no general duty of fairness and reasonableness in the exercise of management rights. The Employer asserts that the assignment of work is an exercise of management rights and the Union has not identified any provision in the Collective Agreement that is adversely affected. THE UNION’S SUBMISSIONS [15] The Union submits that the matter is arbitrable. In the Union’s submission, the essential character of this portion of the grievance rises from the assignment of duties which are arguably unlawful. The Union’s position is that the issue at hand is firmly grounded in the Collective Agreement and is a matter that falls squarely within the Board’s jurisdiction. [16] The Union does not disagree with the Employer’s assertion that the complaint has to be grounded in the Collective Agreement. It is the Union’s submission that the assignment of duties and the performance of duties is foundational, central and essential to the Collective Agreement between these parties. The Union points to the fact that the right to assign duties, the obligation to perform duties, and the right to be paid for the performance of those duties, are all articulated in the provisions of the Collective Agreement. [17] The Union points to the Preamble, Purpose and Recognition clause of the Collective Agreement wherein it is stated that the purpose of the agreement is to maintain satisfactory working conditions and to provide a procedure for the handling of grievances and disputes. The Union further points to the management rights provision in article 2 that specifically refers to the Employer’s ability to assign and direct employees in their work. The Union submits that the wage rates provided for in the Collective Agreement are negotiated by the parties based on a bundle of duties and, as such, the bundle of duties attached to each wage rate is a fundamental aspect of the Collective Agreement. The Union relies on IWK Health Centre v. N.S.G.E.U., 2011 CarswellNS 650. The Union does recognize, and agrees with the Employer’s submissions in such regard, that the Board does not have jurisdiction over classification grievances. The Union states, however, that this is not a classification grievance. [18] The Union argues an employee can be disciplined for failing to carry out an assignment of duties and, in an arbitration contesting the legitimacy of that discipline, the legitimacy of the work assignment can be key to a determination as to whether the discipline was appropriate. In the cases where an employee has not followed the work now grieve later rule, one of the justifications advanced is that the work assignment is - 7 - unlawful. The Union submits that arbitrators regularly assess the legitimacy of the assignment of duties and have the jurisdiction to do so in many different contexts and under many different provisions of collective agreements. [19] The Union is clear that it does not complain that the traffic stops are unlawful from the operator’s viewpoint. The Union asserts bargaining unit members are being assigned unlawful duties contrary to their collective agreement, and the applicable jurisprudence under that collective agreement, as well as contrary to applicable employment related statutes including the HTA and the Charter. For the purposes of the motion, the Union argues that the approach is to assume that there is an arguable case that work assigned is contrary to the Charter and thereby unlawful. [20] The Union argues the survey stops are arguably contrary to the Charter because, stopping a driver in order to perform a survey, is not a lawful reason to pull someone over pursuant to section 82 and 216.1 of the HTA. [21] It is the Union’s submission that, the determination as to whether a work assignment is lawful, is of direct importance to employees, as they cannot be directed or expected to perform unlawful acts. The Union relies on National Starch & Chemical Co. (Canada) Ltd. v. Canadian Union of Distillery Workers, 1976 CarswellOnt 1384 (Rayner) in which the grievor received a five-day suspension for refusing to work overtime. The suspension was found to be unjust on the basis that the overtime assignment was unlawful as the hours the grievor would have worked would have violated the terms of the Employment Standards Act. At paragraph 6: It is trite law to say that an employee need not follow out an illegal order and grieve later. It is well established that an employee cannot be subjected to discipline for a refusal to carry out an illegal order. This conclusion is inherent in the decision of the Supreme Court of Canada in McLeod et al. v. Egan et al. (1974), 46 D.L.R. (3d) 150, [1975] 1 S.C.R. 517, (sub nom. Re MacLeod) 2 N.R. 443. [22] The Union further relies on U.F.C.W., Local 278W v. Canadian Blending & Processing Inc., 2002 CarswellOnt 5543 (Lynk) in which the issue is set out at paragraph 35 as follows: 35 The central thrust of the Union's argument, presented by Mr. Kucey, was that the Employer did not have the lawful authority to require its employees to work beyond the eight hour daily maximum. As s. 21 of the Employment Standards Act makes clear, a permit is the statutory pre-requisite for an employer to require an employee to work beyond the daily maximum limit of eight hours. As for exceptions to this rule, nothing in the events of 12-14 February 2001 amounted to an emergency within the meaning of the Employment Standards Act, so as to justify the Employer's order to Mr. Rocheleau to work 12 hour shifts in the absence of a statutory permit. [23] The Arbitrator’s finding is at paragraph 48, as follows: - 8 - 48 Accordingly, for all these reasons, I find that the Employer has not made out the "serious interference with the ordinary working" standard required by the "emergency" exception in s.19 of the Act. [24] The Arbitrator then considered whether the employee was required to abide by the work now grieve later rule and found the employee was not so obliged as the assignment was improper: 58 Weighing these two factors together, I find that the employee's interest in disobeying the unlawful order outweighs the employer's interest in utilizing Mr. Gauthier, the chief operating engineer, in the optional workplace tasks during the time in question. Accordingly, it is my ruling that, while Mr. Rocheleau disobeyed a direct and clear order issued by the Employer to work the additional hours, his refusal to heed the order was justified by the established exceptions to the obey now, grieve later rule. Accordingly, on this first issue, I find that the Employer has not made out its allegation of insubordination. [25] The Union argues IWK Health Centre, supra, and Canadian Blending & Processing, supra, are of considerable importance as they recognize an employee’s interest in not having to do something that is unlawful. The Union suggests that the Employer minimizes the employees’ interest by saying the employees do not bear responsibility or liability for the unlawful act. The case law, the Union submits, supports the conclusion that the employees have an interest worthy of protection and it is trite that one should not have to do something that is unlawful in their work. [26] In the submission of the Union, the ability to determine whether an assignment of work is lawful is at the foundation of an arbitrator’s jurisdiction. From the Union’s perspective, in order to properly advise its members, the Union must know whether the survey stops are unlawful. For example, the Union submits, it might advise its members to refuse the work assignment if the assignment is unlawful or if the employee could be legally liable for performing the action. [27] The Union further submits, if employees choose to refuse to perform an assignment, they could be subject to discipline for insubordination. In such a case, the matter would be arbitrable and the same question would be before the Board. [28] The Union argues that the law reviewed above establishes that one cannot be required to perform unlawful work assignments and, if that is the case, there has to be a forum for those disputes to be adjudicated. If the GSB does not have jurisdiction, there is no forum for an employee to complain about an unlawful work assignment. In the submission of the Union, the GSB is correct forum to have these disputes determined as the Board will not be looking at the events from the viewpoint of the driver, but rather from the viewpoint of the employee being asked to do something unlawful. [29] In terms of the scope of the Board’s jurisdiction, the Union relies on Weber v. Ontario Hydro, 1995 CarswellOnt 240 for the proposition that a labour arbitrator is a court of competent jurisdiction within the meaning of section 24(1) of the Charter and therefore a labour arbitrator can interpret and apply the Charter and other employment related statutes. The Union further relies on section 48(1)(j) of the Labour Relations - 9 - Act, 1995 s.o. 1995, c 1, Sch A (“LRA”) which provides an arbitrator has the power “to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.” In the Union’s submission, the entire scheme of labour arbitration is to ensure that there is a final and binding resolution of workplace disputes. The Union urges that such provisions grant the Board the authority to opine on the relevant sections of the HTA and the Charter in so far as the relate to the employment of the TEOs. The dispute, the Union argues is one that falls squarely within the jurisdiction of the Board, namely the assignment of unlawful job duties. [30] The Union further argues that the HTA is very much an “employment related” statute for the TEOs and submits the TEOs were created by the HTA; their very existence, the Union submits, arises from the provisions of the HTA. [31] Referring to Parry Sound Social Services v. O.P.S.E.U., [2003] 2 S.C.R. 157 the Union relies on the following quote: Under McLeod, a collective agreement cannot extend to an employer the right to violate the statutory rights of its employees. On the contrary, the broad power of the appellant to manage operations and direct employees is subject not only to the express provisions of the agreement, but also to the statutory rights of its employees. Just as the collective agreement in McLeod could not extend to the employer the right to require overtime in excess of 48 hours, the collective agreement in the current appeal cannot extend to the appellant the right to discharge an employee for discriminatory reasons. Under a collective agreement, as under laws of general application, the right to direct the work force does not include the right to discharge a probationary employee for discriminatory reasons. The obligation of an employer to manage the enterprise and direct the work force is subject not only to express provisions of the collective agreement, but also to the statutory rights of its employees, including the right to equal treatment in employment without discrimination. … (ii) Policy Considerations 50 In respect of policy considerations, I first note that granting arbitrators the authority to enforce the substantive rights and obligations of human rights and other employment-related statutes advances the stated purposes of the LRA, which include promoting the expeditious resolution of workplace disputes. As this Court has repeatedly recognized, the prompt, final and binding resolution of workplace disputes is of fundamental importance, both to the parties and to society as a whole. See for example Heustis v. New Brunswick Electric Power Commission, 1979 CanLII 26 (SCC), [1979] 2 S.C.R. 768, at p. 781; Blanchard v. Control Data Canada Ltd., 1984 CanLII 27 (SCC), [1984] 2 S.C.R. 476, at p. 489; and Toronto Board of Education, supra, at para. 36. It is essential that there exist a means of providing speedy decisions by experts in the field who are sensitive to the workplace environment, and which can be considered by both sides to be final and binding. - 10 - 51 The grievance arbitration process is the means by which provincial governments have chosen to achieve this objective. As Professor P. Weiler puts it, grievance arbitration is both “an antidote to industrial unrest and . . . an instrument of employment justice”: Reconcilable Differences: New Directions in Canadian Labour Law (1980), at pp. 91-92. The primary advantage of the grievance arbitration process is that it provides for the prompt, informal and inexpensive resolution of workplace disputes by a tribunal that has substantial expertise in the resolution of such disputes. It has the advantage of both accessibility and expertise, each of which increases the likelihood that a just result will be obtained with minimal disruption to the employer-employee relationship. Recognizing the authority of arbitrators to enforce an employee’s statutory rights substantially advances the dual objectives of: (i) ensuring peace in industrial relations; and (ii) protecting employees from the misuse of managerial power. [32] The Union argues that the Employer’s position, if successful, would mean that these employees have no remedy, and that result is inconsistent with the case law. [33] In the case of C.U.P.E, Local 133 v. Niagara Falls (City) 2005 CarswellOnt 2468 an employee filed a grievance when his confidential information was improperly disclosed by his employer. The Union argued the grievor was entitled to pursue a remedy by way of the arbitration process as the disclosure amounted to: a breach of an express or implied term of the collective agreement; constituted one or more torts that, according to Weber, supra, and subsequent cases, an arbitrator can consider; or involved a breach of an employment related statute. The statute that was relied upon by the Union and asserted to be an “employment related statute” within the meaning of section 48(12)(j) of the LRA, is the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M. 56 (the “MFIPPA”). At paragraph 157, the arbitrator determined that the MFIPPA is an employment related statute for the following reasons: 130. First of all, it is not without significance that the Legislature has adopted very broad and general language in section 48(12) (j), using the elastic terminology "employment-related statute" — rather than the (perhaps) narrower wording: "employment statute". There is, in my view, a Legislative intention to capture any legislation which has some bearing on the employment relationship, and thus could give rise to issues of application in the work place. The statute in question need not be exclusively about "employment", or "terms and conditions of employment" (which latter words are found elsewhere in the OLRA, but not in 48(12)(j)). The statute need only be "employment-related", or "about employment" in some way - like the Human Rights Code, which deals with "employment", along with a number of other things. 131. The Human Rights Code is clearly an "employment-related statute", even though it is not exclusively about employment; and surely MFIPPA falls into the same category. Not only does the kind of "personal information" regulated by MFFIPPA encompass employment information of various kinds, but the statute itself specifically prohibits the disclosure of such information, except in accordance with its terms. It regulates the behaviour of employers, vis a vis employment information, and it protects the rights of employees in respect of that information. 132. MFIPPA addresses "labour relations information" (section 10), negotiating information, information relating to personnel administration (section 11), personal information relating to "employment or educational history", and so on. Indeed, the - 11 - statute is replete with references to employment, or information likely to be referable to an employee, or information obtained from a person by reason of employment. The word "employment" appears 10 times, in different contexts, and section 52(4) of MFIPPA says that "This Act applies to the following records. an agreement between an institution and one or more employees which ends a proceeding before a court or tribunal or other entity relating to labour relations or employment related matters". And MFIPPA quite clearly regulates access to, and disclosure of, personal employment information as well. Finally, there is no doubt that MFIPPA applies to municipal employers, in their capacity as employers, and deals with information about municipal employees, obtained by the municipality, because they are employees. 133. It seems to me that on any fair reading, MFIPPA is an "employment-related statute" within the meaning of section 48(12)(j) of the Labour Relations Act. 143. In my view, a statute which pertains to employers and employees, and which regulates the collection and disclosure of employment information, or personal information acquired in the course of employment, is an "employment related statute". To the extent that the analysis found in Universal Workers Union, L.I.U.N.A., Local 183 v. King-Con Construction Ont. Ltd., [2004] L.V.I. 3468-6 (Ont. L.R.B.) (May 3, 2004, O.L.R.B.), (which dealt with the Income Tax Act) might suggest a contrary conclusion, I decline to follow it. [34] For the reasons expressed above, MFIPPA was found to be an employment- related statute within the meaning of section 48(12)(j) of the LRA. The HTA, the Union argues, has considerable bearing on the employment relationship at hand and is specific as to the kinds of duties that may be assigned. [35] Further, the Union submits the Board is statutorily bound to assume jurisdiction as the issue is grounded in the Collective Agreement and the jurisprudence establishes the Board has the power to interpret the Charter and employment-related statutes. The Union submits that, if the Board finds it does not have jurisdiction, the employees will have with no remedy and the Employer will be able to make unlawful assignments. [36] Turning to the Employer’s submissions, the Union states it does not pursue this grievance on behalf of the drivers. No remedy is sought for those individuals. The remedy sought is that TEOs not be assigned to perform survey stops. [37] The Union does not disagree with Inco Ltd., supra, but does not agree with the Employer’s submission that the TEOs have to wait for a driver to bring a Charter challenge to get the remedy they are seeking. The Union argues that TEOs ought not to be forced to perform unlawful duties pending a driver bringing an action to challenge their legality. [38] The Union objects to the Employer’s submissions to the effect that, if jurisdiction is assumed here, the flood gates will be opened. The Union states, if the Board has jurisdiction, it must assume it. The Union disagrees with the Employer’s submissions to the effect that, deciding the matter would require the Board to assess the Employer’s activities as a regulator. The Union submits, what is required, is that the Board assess - 12 - the Employer’s activities as an employer in relation the assignment of duties to its employees. In the submission of the Union, that is all that is necessary, and the essential actors would be present and participate in an arbitration. The Employer can call anyone they want to give evidence if they think it is arguably relevant. [39] The Union argues these employees have an interest in not having to perform unlawful acts and it is the assignment of unlawful duties that is the essential character of this case. The Union states that if a “bad faith” assignment of duties is arbitrable, surely an unlawful one is arbitrable. [40] The Union relies on the following excerpt from the case of Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360: 25. To determine whether a dispute arises out of the collective agreement, we must therefore consider two elements: the nature of the dispute and the ambit of the collective agreement. In considering the nature of the dispute, the goal is to determine its essential character. This determination must proceed on the basis of the facts surrounding the dispute between the parties, and not on the basis of how the legal issues may be framed: See Weber, supra at para. 43. Simply, the decision-maker must determine whether having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations. It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly. If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide: see, e.g. Weber, at para. 54; New Brunswick v. O’Leary, supra, at para. 6. [41] The Union submits that the present matter concerns the assignment of duties and the assignment of duties is covered by this collective agreement. Further the Union argues that there is no other forum for this issue to be determined as, if an employee were to attempt to take the issue to court, the Court would point to Weber and send the employee back to the arbitration process. If the Board does not assume jurisdiction, the Employer is free to assign lawful duties without consequences. [42] The Union argues that the Board would certainly have jurisdiction to enquire into the legality of the work assignment if an employee were to refuse to do the work and attracted discipline. The Union submits that the legality of the work assignment would be front and centre in such arbitration. If the Board would have jurisdiction in that case, it must have jurisdiction now. There is no rational basis for the distinction. An employee ought not to have to subject themselves to discipline in order to get a determination as to whether the work assignment is lawful. [43] Finally, the case of Lesieur, supra, is distinguishable as the subject matter of the dispute, membership fees, was not referenced in the collective agreement in any way. Here, the assignment of work, is clearly the topic of this collective agreement. - 13 - EMPLOYER REPLY SUBMISSIONS [44] In reply, the Employer disagreed with the Union’s submission that there has to be a forum for this complaint. Borowski, supra, determined that a section 9 Charter challenge cannot be brought based on someone else’s rights. These employees cannot advance the rights of the drivers. [45] The Employer does not agree that the activity under scrutiny is MTO acting as “employer” and reiterates its position that the activity is MTO acting as “regulator.” The Employer states that the Ontario Public Service exists by way of legislation and everything it does is subject to legislation. Every function it performs is legislated. The Ministerial functions of a particular ministry are regulatory, or prosecutorial, or whatever the function of that particular ministry. If the Union is right, does that mean that a Crown counsel who is running a prosecution, where it is possible that the accused’s rights under Askov 1 are being violated, but the defendant counsel has not bothered to bring a motion in relation to that, is able to say, “I refuse to bring that prosecution forward because it might violate someone’s rights?” Or, the Employer asks, what if an employee is concerned that a statute violates Indigenous rights? Is the employee entitled to refuse to perform their duties under that statue on the basis that it violates the rights of others? [46] The Employer disagrees with the Union’s submission that the HTA is an employment related statute. Niagara Falls, supra, relied upon by the Union in which the MFIPPA was found to be an employment related statute, is distinguishable. The MFIPPA contained specific provisions dealing with employment relationship. There are no such provisions in the HTA. The only basis offered by the Union for finding that the HTA is an employment related statute is that the TEOs operate under its’ auspices. [47] The Employer argues that all of the cases the Union relies upon in support of its position that an employee is not required to follow an illegal direction, involve ESA violations where the employer directed the employee to do work that would have violated the ESA in respect of that specific employee. All of those cases deal with the specific rights of the grievor, not some generalized unlawful conduct that their employer is engaging in. It is the grievors’ rights that are being directly affected. And, the Employer argues, even where it is their rights, as in Lesieur, supra, that does not mean the Board has jurisdiction. [48] In terms of discipline, the Employer argues that discipline was a live issue in Lesieur and the Board did not find it had jurisdiction. The Employer submits that, if a TEO refused to perform survey stops and discipline were imposed, the Board would not look at whether the survey stops would have resulted in a breach of the HTA or the Charter to decide if discipline was warranted. Rather, the Employer argues, the issue would be whether the employee failed to comply with a direction. According to the Employer, taking the Union’s position in the reverse, if the Employer said to an investigator, do not do an investigation because it might breach the Charter, and the 1 R. v. Askov, [1990] 2 SCR 1199 in which the Supreme Court of Canada developed a test for determining whether the length of time it took to get to trial violated the accused’s Charter right to a trial within a reasonable time. - 14 - individual went ahead and did the investigation and was disciplined, at an arbitration hearing to determine whether discipline was warranted, the issue would not be whether the investigation breached the Charter, it would be whether the employee failed to comply with a direction. The Employer submits that it does not matter if the individual could be disciplined as the issue at arbitration would not be the legality of the work assigned. [49] The Employer submits the Union has not alleged in its particulars that employees could be damaged or held responsible in some way and it is the Employer’s position that the TEOs are unaffected. The Employer disagrees that there has to be a forum for the grievors to advance their allegation and argues every public servant knows, under the Public Service Act of Ontario, 2006, S.O. 2006, c 35, Sch A, there are provisions to disclose wrongdoing, such that, if they have a view they are being asked to do something inappropriate, there is a means to have it looked into by an independent body. LIGHTS AND SIRENS [50] Following the hearing, the parties were invited to provide the Board with submissions in respect of two cases. As the Employer pointed out, one of the decisions was decided under Article 22.16 and, accordingly, is non-precedential. The second decision is Metropolitan Toronto (Municipality) v. C.U.P.E (C.A.) 1990 CanLII 6974 (ON CA) known as “Lights and Sirens” [51] The Union’s submissions are as follows: 4. The Metropolitan Toronto case stands for the proposition that the “obey now, grieve later” rule is a central part of Ontario’s labour relations regime. 5. In that case, the Municipality of Metropolitan Toronto (the employer) introduced a policy whereby ambulance drivers were required to use ambulance lights and sirens in all emergency situations. The new policy removed the discretion that drivers had under the former policy. The workers grieved the policy change. The Board of Arbitration held that it had jurisdiction to hear the grievances and found that discipline under the new procedures would be unjust. 6. Next, the Divisional Court held that the Board of Arbitration’s decision should be quashed because it was a reviewable error to hold that the grievances were inarbitrable and that the employer was required to act reasonably when creating rules with disciplinary consequences. 7. The Ontario Court of Appeal examined whether the Divisional Court erred in its decision. Judge Tarnopolsky held that the Divisional Court decision be set aside, and that the award of the Board of Arbitration be restored. 8. Judge Tarnopolsky’s reasoning for this decision is grounded in the “obey now, grieve later” rule, which requires employees to obey employers’ directives, subject to some exceptions, and later challenge the directives using the grievance arbitration - 15 - process. 9. At paragraph 3 of page 20, Judge Tarnopolsky explains that: “if the purpose of the rule is to avoid insubordination and anarchy in the workplace, the obvious trade-off is that employees in a unionized environment will have the right to grieve rules, the breach of which would likely have led to discipline, even as they continue to obey them.” 10. At paragraph 4 of page 22, Judge Tarnopolsky goes on to say that: “it seems clear that under an “obey now, grieve later” rule, an arbitrator is practically required to take jurisdiction to hear a grievance against a directive, at least in a case where a breach is likely to constitute insubordination and subject the employee to disciplinary action.” Application to the Current Case 11. The Union respectfully submits that the reasoning in the Metropolitan Toronto case is directly applicable to the current arbitrability issue. In its submissions on January 18th, 2021, the Union argued that the “obey now, grieve later” rule would be rendered meaningless if the employees were required to obey the employer’s directives and had no remedial avenue. The Union expressed its concern that if the matter was inarbitrable, then employees would be forced to disobey the employer’s directives, and only be permitted to address concerns after they had been disciplined for insubordination. 12. The Union respectfully submits that the case at hand is substantially similar to the Metropolitan Toronto case, as both cases involve employees who did not agree with an employer’s work directive and submitted grievances without first receiving discipline. 13. One notable difference between the two cases, however, is the fact that the ambulance drivers held the view that the new policy was unreasonable, whereas the MTOs in the current case are concerned that the work directive is an unlawful infringement of drivers’ Charter rights and freedoms. The Union respectfully submits that the GSB certainly has the jurisdiction to review potentially unlawful orders, since the Ontario Court of Appeal has opined on potentially unreasonable orders. 14. In anticipation of the Ministry of Transportation’s submissions, the Union further submits that Judge Tarnopolsky’s obiter comments at paragraphs 3 to 4 of page 16 are distinguishable from the current case. There, Judge Tarnopolsky distinguishes the case from Ontario v. O.P.S.E.U. (1986), 57 O.R. (2d) 404, which held that the GSB did not have jurisdiction to review a ministry policy in the absence of discipline. Judge Tarnopolsky reasoned that the ministry policy reflected the Legislature’s will, as expressed in the Public Service Act. 15. Similarly, the case at hand is distinguishable from Ontario v. O.P.S.E.U. because the work directive at issue is neither a ministry policy, nor a demonstration of Legislative intent. The Union respectfully submits that the survey stops are work - 16 - assignments that are not grounded in statute. To the contrary, and without prejudice to the Union’s future submissions on the issue, the employees are concerned that they do not have the statutory authority to perform the work directive and are therefore asked to perform unlawful orders. [52] The Employer’s submissions are as follows: This decision also does not assist the Union’s position. The Lights & Sirens case related to the impact of a workplace rule upon the safety of the grievor’s in the performance of their job. The Union alleged that the employer’s rule created a situation described as “like driving through a mine field”. The Court approved of the Board of Arbitration taking jurisdiction in that case because waiting to bring a grievance through the health and safety exception or waiting for an unsafe event to occur, would have been irresponsible. In the case before you, we are not dealing with a workplace rule – we are dealing with a job function. To be clear, a job function that has been performed since 2013 without issue. But beyond that, the case before you is another level removed from what was before the Court of Appeal. The Court of Appeal was dealing with the workplace rules that could have direct negative effect to the grievors in that case. The grievance before you is akin to a public servant who was tasked with issuing driver’s licenses for 7 years, but decides to refuse to issue the licenses on the basis that they do not believe the Ministry’s testing was sufficiently robust to ensure the safety of the public. They could certainly be disciplined for refusing to issue the license, but they would be disciplined because of their purported desire to protect the rights of others and not their own rights. And in the case before you, the Union is asking you, after 7 years, to review the legality of their job functions (similar to what the Court of Appeal was tasked to do in the R. v. Inco case that was previously provided to you). It would not be in line with the above cases for this Board to take jurisdiction with respect to the grievance set out above. The rights of the Grievors are simply not impacted in any way, and the union has not taken the position that their rights were impacted. Furthermore, the Highway Traffic Act is clear that only the Crown can have any kind of liability with respect to the work of TEOs: Protection from personal liability 5.4 (1) No action or other proceeding for damages shall be instituted against the Minister, the Registrar of Motor Vehicles, a public servant, a delegate or agent of the Minister for anything done in good faith in the execution or intended execution of a power or duty under section 5.2 or 5.3. 2008, c. 17, s. 30. Crown not relieved of liability (2) Despite subsection 8 (3) of the Crown Liability and Proceedings Act, 2019, subsection (1) does not relieve the Crown of liability in respect of a tort committed by a person mentioned in subsection (1) to which it would otherwise be subject. 2008, c. 17, s. 30; 2019, c. 7, Sched. 17, s. 88 (1). - 17 - ANALYSIS [53] The Union asserts that, similar to a no prima facie case motion, it is to be assumed, for the purposes of this motion, that the facts as alleged by the Union are true. I do not accept the Union’s submission on this point. In the context of a no prima facie case motion, the issue is whether or not the Union alleges facts that, if true, would make out a violation; the facts have to be assumed to be true in order to decide the motion. In this case, the issue is whether the dispute falls within the Board’s jurisdiction. There is no reason, in deciding such a motion, to assume the facts as alleged to be true. [54] The Board’s jurisdiction comes from a number of sources. Section 7(3) of CECBA provides: Every collective agreement relating to Crown employees shall be deemed to provide for the final and binding settlement by arbitration by the Grievance Settlement Board, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable. [55] Section 48(12)(j) of the LRA, grants the Board additional jurisdiction to “interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement,” however, given the basis upon which I have decided this matter it is not necessary to go beyond section 7(3) of CECBA. According to section 7(3), the matter is arbitrable if there is a connection between the issue in dispute and the language of the collective agreement. [56] In the case of in Metropolitan Toronto, supra, the Ontario Court of Appeal determined that, where an employer creates a workplace rule that, if an employee were to refuse to follow, would result in the imposition of discipline, there is a link between the issue in dispute and the “just cause” provision of the collective agreement. Metropolitan Toronto found that, given the “obey now grieve later rule,” such a matter is arbitrable even in the absence of discipline having been imposed. The Court further stated that the Employer was required to act reasonably in promulgating rules with disciplinary consequences. [57] The Employer argues Metropolitan Toronto is distinguishable for a number of reasons. First, the Employer argues, discipline was a live issue in Lesieur, supra, however, the Board, in that case, found it had no jurisdiction. [58] The only reference to discipline in Lesieur appears in the portion of the decision setting out the union’s submissions. It is as follows: Further, [the union submits] the Board has jurisdiction to hear and decide the issue because membership in the Association brings duties and obligations upon the grievors such as disciplinary action with ramifications beyond employment with this Ministry. At the very least, this must be seen to be an inappropriate exercise of management’s rights. - 18 - [59] In Lesieur, the union raised the possibility of discipline being imposed on its members by the Association of Professional Geoscientists, not by the Employer. There is no other mention of discipline in the GSB’s decision. [60] The Employer further argues that Metropolitan Toronto was concerned with a “workplace rule,” whereas, in the present case, the Employer argues, what is at issue is a job function that has been performed by the TEOs for seven years. In my view, the reasoning applied by the Court of Appeal in Metropolitan Toronto was not dependent on the fact that the requirement was adopted by way of a “rule.” It is not the form the requirement took that was material; it was its substance. The Court of Appeal was concerned that an employer could impose a requirement on an employee, and the employee, by application of the “obey now grieve later” principle, would be forced to comply or face discipline. The Court of Appeal determined that an employee could grieve a requirement without the need to refuse to comply and attract discipline. The link between the issue in dispute and the language of the collective agreement was found to exist between the discipline in the abstract and the just cause language in the collective agreement. What was of significance to the Court was the existence of a requirement that an employee must follow or face discipline if they were to refuse. In this case, the Employer has imposed a requirement on TEOs that they perform survey stops. If a TEO does not comply, discipline could result. I find the requirement imposed in this case to be, in substance, the same as the workplace rule discussed in Metropolitan Toronto. [61] The Employer further distinguishes Metropolitan Toronto on the basis that the workplace rule at issue was alleged (and ultimately found) to create a safety issue for the grievors. The Employer argues that the Court approved the Board of Arbitration taking jurisdiction as, waiting to bring a grievance through the health and safety exception or waiting for an unsafe event to occur, would have been irresponsible. [62] I am not persuaded that the determination of the Court of Appeal in Metropolitan Toronto is limited to cases where the workplace rule is alleged to have created a safety issue. The Court of Appeal’s reasoning begins with a discussion of the “obey now grieve later” rule. It is that rule that led the Court to find a grievance concerning discipline in the abstract to be arbitrable. The Court’s comments were of a general nature, not restricted to disputes over health and safety. The Court only turned to the health and safety aspect of the matter in response to the employer’s argument that, because the case concerned health and safety, the matter fell within an exception to the obey now grieve later rule, and the employees could have refused to follow the employer’s instructions, attracted discipline, and then had a clear entitlement to grieve the reasonableness of the rule. The many paragraphs of the decision dealing with the safety aspect of the matter are the Court’s reasons for rejecting the employer’s submission. I do not read the determination reached in Metropolitan Toronto as limited to a workplace rule involving health and safety. [63] Next, the Employer argues that the TEOs have been doing this work for seven years without complaint. This fact is not material to a determination as to the Board’s jurisdiction. - 19 - [64] Further, the Employer submits this is not a matter within the Board’s expertise; the Courts are the better forum for the adjudication of these issues and a decision interpreting the HTA and/or Charter is subject to judicial review on the standard of correctness. For the sake of clarity, I would point out that the issues raised in this grievance, namely whether survey stops are within the authority of the TEOs having regard to the provisions of HTA, and whether survey stops violate the section 9 Charter rights of the drivers, is not before the courts. Further, the Board is not being asked to defer to another forum; it is being asked to find it has no jurisdiction. The Employer’s submissions may very well be true, however, the fact that there is a better forum, or that the Board’s decision will be subjected to the correctness standard in the event of review, does not lead to the conclusion that the Board lacks jurisdiction. [65] In the course of its submissions as to why Metropolitan Toronto, supra, is distinguishable the Employer offers the following analogy: …. the case before you is another level removed from what was before the Court of Appeal [in Metropolitan Toronto]. The Court of Appeal was dealing with the workplace rules that could have direct negative effect to the grievors in that case. The grievance before you is akin to a public servant who was tasked with issuing driver’s licenses for 7 years, but decides to refuse to issue the licenses on the basis that they do not believe the Ministry’s testing was sufficiently robust to ensure the safety of the public. They could certainly be disciplined for refusing to issue the license, but they would be disciplined because of their purported desire to protect the rights of others and not their own rights. And in the case before you, the Union is asking you, after 7 years, to review the legality of their job functions (similar to what the Court of Appeal was tasked to do in the R. v. Inco case that was previously provided to you). It would not be in line with the above cases for this Board to take jurisdiction with respect to the grievance set out above. The rights of the Grievors are simply not impacted in any way, and the union has not taken the position that their rights were impacted. [66] While it is true that the TEOs bring this grievance based on the rights of others being violated and not their own, it is not that the TEOs think the Employer’s chosen means of operating results in a lack of safety; the TEOs assert that the Employer’s chosen means of operating is unlawful. Further, I do not see the actions of the employees in the analogy offered as being the direct means by which an unsafe situation is created. In the present case, the TEOs allege that their very conduct is the manner in which the Employer is committing an unlawful act. [67] The Employer further argues, if a TEO refused to perform survey stops and discipline were imposed, the Board would not look at whether the survey stops would have resulted in a breach of the HTA or the Charter to decide if discipline was warranted. Rather, the Employer argues, the issue would be whether the employee failed to comply with a direction. According to the Employer, taking the Union’s position in the reverse, if the Employer told an investigator not to do an investigation because it might breach the Charter, and the individual went ahead and did the investigation and was disciplined, at an arbitration hearing to determine whether discipline was warranted, - 20 - the issue would not be whether the investigation breached the Charter, it would be whether the employee failed to comply with a direction. The Employer submits that it does not matter if the individual could be disciplined as the issue at arbitration would not be the legality of the work assigned. [68] I do not favour the Employer’s analogy. In the present case, if a TEO refused to perform survey stops as directed and were disciplined, the employee would argue at arbitration that discipline was not warranted because their refusal was based on the fact that, performing the survey stop, would have resulted in an illegality: the employee would be raising the illegality to mitigate or provide an exculpatory explanation for their conduct. The employee would essentially be saying: “I could not do what I was told to do because….” In the analogy offered, the employee was told not to perform a function and there was no impediment to the employee following the direction. The employer’s reasons for directing them not to perform the function would not be defense for going ahead and doing it anyway. The employee would not be saying: “I was forced to do it because…..” [69] The Union presented a number of cases wherein it was determined that an employee is not required to comply with an illegal direction. In each of those cases, the grievor was personally impacted or affected by the direction challenged. The Metropolitan Toronto case, in the course of referring to exceptions to the obey now grieve later rule, states: “it is now generally recognized that an employee is entitled to refuse to follow his supervisor’s instructions where such instructions … require him to perform an illegal act…” At a minimum, this quote from Metropolitan Toronto, has to be read as standing for the proposition that an employee can refuse to comply with a direction that would put the employee in a position of facing legal liability. I was not provided with a case in which it was found an employee could grieve a workplace rule that put the employee in the position of being the means by which the Employer acted in an illegal fashion as against a member of the public with the employee bearing no legal liability. [70] The Employer argues such an employee has no interest in the matter. In my view, for an employee to be placed in the position of having to perform an act, that the employee knows will violate the legal rights of another, or face discipline, including potential dismissal, is simply unfair and unjust. The alleged facts of this particular case are that drivers are being stopped and redirected to another location for the purpose of being asked to perform a survey by a TEO who has no statutory authority to do so and resulting in the driver being arbitrarily detained. While the alleged facts may not be the most compelling, it does not take much imagination to think of circumstances that would be. I do not mean to suggest by way of these examples that this Employer would ever give such directions. I offer them merely to state why an employee has an interest in not being used by the Employer as a means by which an illegal act is performed. Imagine if the TEOs were directed to only pull over black drivers or directed to subject white drivers to only a licence check and subject black drivers to a full vehicle inspection. I cannot conceive that, in such circumstances, the employee would not be fully within their rights to refuse, or that, at arbitration into any discipline imposed, the fact that the Employer’s direction was illegal would not be relevant. An employee ought - 21 - not to be forced, by threat of discipline to, perform a task they know will violate the rights of another. [71] That said, however, the law is not always clear. In fact, most of the time, the state of the law is subject to interpretation, and reasonable, learned persons, can disagree. Statutory language is subject to interpretation and interpretive decisions may or may not exist. Where decisions exist, they may not be directly on point or there may be inconsistent decisions. The “law” is especially hard to nail down in instances where it depends on context, a list of factors or considerations, or the specific facts. Unless the very facts one faces have previously been the subject of litigation, one can only draw on the language of the statue and analogous cases to decide what is “legal” and how to proceed. This Employer, like most, has legal counsel who provide expert advice on the scope and application of the law and, it is based on such advice, that the Employer makes regulatory decisions. Such a decision may subsequently be found to be wrong, but that does not necessarily mean that the decision was, at the time it was made, unreasonable. [72] In my view, the interest an employee has in not carrying out an act that will violate the rights of others arises from their knowledge, that what they are about to do, will in fact violate another’s rights. However, where it is uncertain as to whether such a violation would occur, the employee has no cause to complain. If an employee is doubtful as to the legality of the employer’s directions, or is suspicious as to their lawfulness, the employee is, as many are, simply working in an environment where the law’s application is not crystal clear. An employee is not entitled to be provided with certainty that their work will never put their employer, especially one that works as a regulator, in the position of having violated another’s rights, and as discussed above, such certainty may not be possible. An employee can have doubts and suspicions as to the legality of their work, but that is simply a feature of our legal system. Absent certainty that the work they are asked to do will result in the violation of anther’s rights, employees do not have an interest, of their own, to protect. If it is not clear and unambiguous that the Employer’s direction would in fact result in an illegality, it is not for an employee to seek out a definitive answer. Further, and in any event, any determination reached by the GSB, which would lack the requisite expertise, and not have the benefit of participation by all affected parties, would, as in CPIC - GSB, unlikely be the final word on the question. [73] I turn lastly to the Employer’s submissions as to the Board’s jurisdiction to enquire into matters that fall within the ambit of the Employer’s conduct in its capacity as a “regulator” as opposed to its capacity as an “employer.” In its capacity as a regulator, the MTO makes numerous regulatory decisions concerning how it will operate and actions those decisions by way of assignments to its employees. [74] The CPIC – ONSC decision, relied upon by the Employer in support of this argument, is instructive. In that case, the Board enquired into the question as to whether an inspector’s criminal record should be the subject of “first party” disclosure as the Supreme Court of Canada had ruled was the case with police officers or, rather, should be obtained by the accused pursuant to a third-party O’Connor application. The GSB found in favour of the latter. On judicial review. the Employer challenged the - 22 - Board’s decision on a number of grounds including that the Board exceeded its jurisdiction in purporting to interpret and limit the Crown’s disclosure obligations in conducting prosecutions, and the GSB erred in its interpretation of the obligations that R. v. McNeil imposes on the Crown. [75] The Court did not decide the issue as to the Board’s jurisdiction; it assumed without finding that the Board had jurisdiction. However, at paragraphs 19 through 21, the Court state as follows: [19] At paragraph 19 of the Board's decision, the GSB Arbitrator observed "clearly, I have no jurisdiction to control the prosecutions arising under the Occupational Health and Safety Act, or the conduct of the Crown in relation thereto. Those are matters that lie properly within the jurisdiction of the courts that possess the authority to deal with such matters." [20] However, despite recognizing that it did not have the authority to decide matters relating to the Crown’s conduct of prosecutions, the Board proceeded to do just that. [21] It is difficult to understand how the Crown's disclosure obligations in its capacity as a prosecutor could possibly "arise under the Collective Agreement". If the Crown has disclosure obligations in the context of prosecutions under the Provincial Offences Act, it is surely beyond the capacity of the parties to vary or dispense with those obligations under the terms of a collective agreement. If the Crown has a legal obligation to an accused, no collective agreement can avoid that obligation. [76] At paragraph 35, the Court, in the context of reviewing the portion of the Board’s decision wherein safeguards were put in place to protect the employees’ private information, stated: Recognizing that the Crown is before the Court, and was before the GSB, in its dual capacity as employer and prosecutor, it was clearly within the Board’s mandate to interpret the Collective Agreement so as to address the Crown’s obligation qua employer. [77] The Court’s comments certainly appear to suggest that, in determining whether the Employer had violated the privacy rights of the investigators, the Board ought not to have gone behind the Crown’s determination that the principles expressed by the Supreme Court of Canada in R. v. McNeil applied to investigators under the OHSA and the ESA thereby necessitating the performance of the CPIC checks. [78] Above, I have found that an employee’s interest is limited to not having to preform work that, it is clear and unambiguous, at the time the direction is given, will in fact result in an illegality. This determination leads to the result, that the Board would not enquire into decisions made by the Employer in its capacity as regulator except to the limited extent that such decisions are clearly, on their face, illegal. [79] For the reasons set out above, I hereby find the Board to have jurisdiction to adjudicate the allegation concerning the survey stops provided the state of the law is - 23 - such that it is clear and unambiguous that the Employer’s directions would require the TEOs to perform functions that would result in a violation of the HTA or the Charter. [80] This matter is to be scheduled for a day of case management to determine whether and, if so, how, this portion of the grievance will proceed. Dated at Toronto, Ontario this 26th day of February, 2021. “Diane L. Gee” ________________________ Diane L. Gee, Arbitrator