Loading...
HomeMy WebLinkAbout2017-1142.Derjugin et al.21-04-23 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#2017-1142; 2017-1144; 2017-1188; 2017-1189; 2017-1191; 2017-1193; 2017-1194; 2017-1391; 2017-1393; 2017-1533; 2017-1534; 2017-1535; 2017-1536; 2017-1537; 2017-1538; 2017-1634 UNION#2017-0234-0112; 2017-0234-0114; 2017-0234-0115; 2017-0234-0116; 2017-0234-0118; 2017-0234-0120; 2017-0234-0121; 2017-0234-0129; 2017-0234-0131; 2017-0234-0143; 2017-0234- 0144; 2017-0234-0145; 2017-0234-0146; 2017-0234-0147; 2017-0234-0148; 2017-0234-0134 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Derjugin et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Max Halparin Dewart Gleason LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING March 26, 2021 -2- DECISION [1] I have sixteen grievances before me filed on behalf of ten Provincial Bailiffs. In essence, the Grievors and the Union allege that the Employer failed to prevent a poisoned work environment by not taking adequate steps to address the harassing and bullying conduct of Mr. J. Pacheco and by re-instating Mr. Pacheco to the Offender Transfer Operations unit in 2017. They allege that the Employer’s conduct or its failure to respond appropriately contravened the Collective Agreement, as well as the Code of Conduct and Professionalism, the Workplace Discrimination and Harassment Prevention Policy, the Occupational Health and Safety Act and the Ontario Human Rights Code. [2] We are at the stage in this proceeding where the Union has completed its evidence. That evidence consists of the testimony from all of the Grievors and numerous exhibits. The Employer has requested that the grievances be dismissed. This decision only addresses the Employer’s motion. [3] In support of the motion, Employer’s counsel relied on the following decisions: OPSEU (Bharti) and Ministry of Natural Resources and Forestry, 2015 CanLII 19330 (Anderson); OPSEU (Pacheco) and Ministry of the Solicitor General (2020), GSB No. 2010-2654 (Petryshen); OPSEU (Tardiel et al.) and Ministry of Community Safety and Correctional Services (2009), GSB Nos. 2005-1443 et al. (Albertyn); OPSEU (Pacheco) and Ministry of Community Safety and Correctional Services (2017), GSB No. 2010-2654 (Petryshen); John Pacheco v. OPSEU, [2020] OLRB No. 1414-20-U; OPSEU (Grievor) and Ministry of the Solicitor General (2020, GSB No. 2015-0618 (Harris); OPSEU (Jones et al.) and Ministry of Labour (2010), GSB No. 2006-1204 et al. (Abramsky); Borowski v. Canada (Attorney General, [1989] 1 SCR 342; OPSEU and Community Safety and Correctional Services, 2010 CanLII 52643 (ON GSB Abramsky); OPSEU (Coelho) and Ministry of Children and Youth Services, 2014 CanLII 302245 (ON GSB Lynk); and, Bazger and (Ontario) Ministry of Community Safety and Correctional Services (2018), PSGB No. P-2014-2859 (O’Neil). -3- [4] In defending the motion, Union counsel referred me to Brown & Beatty, Canadian Labour Arbitration, 5th Edition, sections 2:3240 and 3:2640, and relied on the following decisions: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) (2002), 62 O.R. (3rd) 167 (Div. Ct.); OPSEU (Whan et al.) and Ministry of Transportation, 2007 CanLII 6889 (Dissanayake); Ontario v. OPSEU (1990), 37 O.A.C. 218 (Div. Ct.); Re Southern Alberta Institute of Technology and A.U.P.E., Local 39 (1994), 43 L.A.C. (4th) 261 (McFetridge); Re Toronto District School Board of Education and CUPE, Local 4400 (2008), 168 L.A.C. 94th) 339 (Swan); Re Waterloo (Regional Municipality) and CUPE, Local 1883 (2008), 171 L.A.C. (4th) 107 (Luborsky); Re Wild Rose School Division No. 66 and CAAMSE (Reil) (2014), 244 L.A.C. (4th) 416 (Wallace); Re York University and CUPE, Local 3903 (2010), 199 L.A.C. (4th) 233 (Slotnick); and, OPSEU (Ranger) and Ontario (MCSCS) (2010), 190 L.A.C. (4th) 317 (Leighton). [5] I referenced the principles that are applied by the GSB in resolving non-suit motions in OPSEU (Pacheco) and Ministry of the Solicitor General, supra, by adopting, with one addition, the following summary at paragraph 9 in OPSEU (Whan et al.) and Ministry of Transportation, supra: 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 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. -4- 7. Where a non-suit motion is granted, a written decision with reasons will follow. However, where a non-suit motion is denied, no reasons, oral or written, will be issued. The additional comment I made in relation to point 3 is that “the test of whether there is some evidence to support the claim assumes that the evidence meets a minimum threshold of credibility.” This comment is consistent with the views expressed in Re Southern Alberta Institute of Technology and A.U.P.E., supra, and in other recent decisions. [6] In dealing with the Employer’s motion, I have reviewed the testimony of the Grievors and the documentary evidence, and I have considered the basis on which the Employer has sought to have the grievances dismissed. I have also carefully considered the thoughtful submissions made by counsel. In applying the appropriate principles set out above, I am satisfied that it would be inappropriate to dismiss the grievances at this stage of the proceeding. Accordingly, the Employer’s non-suit motion is hereby dismissed. In accordance with the Board’s practice, I will not provide reasons for this determination. Dated at Toronto, Ontario this 23rd day of April, 2021. “Ken Petryshen” ______________________ Ken Petryshen, Arbitrator