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Home My WebLink About2019-0051.Walji.21-07-29 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# 2019-0051 UNION# 2019-5112-0026 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Walji) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Kevin Banks Arbitrator FOR THE UNION Manprit Singh Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Regina Wong Treasury Board Secretariat Legal Services Branch Counsel HEARING June 10, 2021 - 2 - Decision [1] On February 25, 2019 Ms. Walji filed the following grievance: I, Nasim Walji grieve the employer, The Ministry of Community Safety & Correctional Services violated but not limited to, Article 2, Management Rights, Article 3 Discrimination, and the Ontario Human Rights Code. The employer, The Ministry of Community Safety & Correctional Services continues to support the systemic discrimination against racialized and marginalized workers within the Ministry of MCSCS, particularly as it relates to discipline, and the exclusion of black employees not afforded the same opportunities, acting assignments, and promotions as my non-ethnic counterparts at Toronto South Detention Centre. This discrimination is prevalent through-out the selection and interview process as the employer does not embrace the diversity of having ethnic, racialized, and marginalized personnel assigned to competition or selection process. [2] Ms. Walji and the Union subsequently provided to the Employer the following Statement of Particulars. At the Employer’s request, not opposed by the Union, I have replaced the names of persons alleged to have family relationships (allegations which the Employer denies) with initials. 1. Nasim Walji (“the Grievor”) works in Office Administration (OAG9) at the Toronto South Detention Centre (“TSDC”). She has been an employee since 1989. 2. On February 25, 2019 the Grievor filed the grievance which now bears OPSEU#2019-5112-0026. This grievance alleges that the Employer violated Articles 2, and 3 of the Collective Bargaining Agreement, as well as the Ontario Human Rights Code. 3. The grievance further alleges that the Employer “continues to support the systemic discrimination against racialized and marginalized workers within the Ministry of MCSCS, particularly as it relates to discipline, and the exclusion of black employees not afforded the same opportunities, acting assignments, and promotions as my non- ethnic counterparts at Toronto South Detention Centre. This discrimination is prevalent through-out the selection and interview process as the employer does not embrace the diversity of having ethnic, racialized, and marginalized personnel assigned to competition or selection process.” 4. These allegations are set out in further detail below. 5. In 2014, the Grievor became aware that an Assistant Business Administrator position had become vacant. She requested a development assignment to this position. She was advised it would be posted as a competition. 6. On January 27, 2014, AB, a Finance Clerk (OAG8) from Maplehurst C.C. was transferred to TSDC to fill the Assistant Business Administrator position on a contract basis. AB was also awarded $800.00 in mileage expenses every month. AB was a family member of Deputy Superintendent RK. It is the Grievor’s position that this role was filled on the basis of nepotism, and TSDC employees were not given a fair opportunity. - 3 - 7. When AB’s contract expired, the Grievor again requested to be given a development opportunity. She was again advised that the position would be posted and filled through a job competition. However, AB’s contract was ultimately extended instead. It is the Grievor’s position that this constituted systemic racism, as racialized employees were overlooked in favour of a non-racialized family member of management. 8. In 2018, the Assistant Business Administrator position was again vacant. The Grievor again requested a development opportunity. She was informed by the Deputy Superintendent of Finance that the job would be posted for a job competition. 9. In January 2016, MK was hired as OAG 8, Finance Clerk. In May 2016 he received an opportunity at the Regional Office as Finance Clerk OAG 10. No one else was given this opportunity, despite having more years of service. 10. MK received an opportunity to work in a business administrator role at Vanier, classification MO7010, Finance 31. 11. At TSDC, on December 10, 2018 MK was given an opportunity in the Assistant Business Manager role. This was signed off on by Regional Director LL who was related to MK. The Grievor had made prior requests to the Deputy of Finance for an opportunity in this role, but was advised that it would be posted as a job competition. 12. On or around May 2019, MK left the role after being successful in a job competition for a role at the corporate office. When he left the Assistant Business Manager role, the Grievor asked for an opportunity in this role and was advised it would be posted. 13. On or around June 2019, MK returned to TSDC as he was not enjoying his work at the corporate office. He was again placed into the Assistant Business Manager position. 14. In May 2019, Joan Marshall-Wilkinson, Assistant Business Manager, was given an acting opportunity as Business Manager. On the same day, the Grievor made a request to Deputy McKinnon that she be given a development opportunity to fill her position as Assistant Business Manager. The Grievor was advised the role would be posted. 15. In March 2020, MK resigned TDSC to pursue a different career path. At this time, the Grievor requested a development opportunity to fill the vacant Assistant Business Manager role. She was advised it would be posted for a job competition. 16. On July 31, 2020 a job competition was posted for the Assistant Business Manager position. The Grievor applied for this position but was not successful. The Grievor had never been given the opportunity to fill this role on an acting basis. It is the Grievor’s position that this constitutes systemic racism. 17. It has been the Grievor’s experience that as a racialized employee she has not been given the same development opportunities as non-racialized employees. It has been her experience that despite multiple requests, she is not given any opportunities whereas non-racialized employees are placed in higher classified positions without any - 4 - training or experience, on the basis of nepotism. Further examples of this are provided below. 18. October 17, 2017 TF was hired on contract, as file clerk (OAG3) was given an opportunity to fill a personnel clerk (OAG9) on May 2019 position without a competition. She was a family member of Deputy HJ. The Grievor was told to train her from the basics. 19. In October 2019, FW, a retired employee and family member of Deputy VK, was brought in to fill a 3-day a week contract position. This was not posted. 20. It is the Grievor’s experience that while most of the local office administration staff are racialized and have more experience, non-racialized employees from other institutions were given development opportunity at TSDC to fill vacant roles. [3] At a hearing on June 10, 2021 the Employer brought a motion to strike certain particulars and to dismiss the grievance for failing to disclose a prima facie case. [4] This decision addresses that motion. The Motion to Strike Particulars [5] The motion to strike particulars is based on six distinct grounds. I will consider each in turn. [6] First, the Employer contends that paragraphs 6 and 7 should be struck because they relate to staffing actions that were the subject of an earlier grievance filed by Ms. Walji and others on August 15, 2014 and dismissed by decision of Arbitrator Leighton on March 30, 2015. The Employer tendered in evidence the August 15, 2014 grievance form and Arbitrator Leighton’s decision, which carries Board file number 2014-2693. The Employer contends that the legal and factual issues raised in paragraphs 6 and 7 were decided in the earlier grievance proceedings, that the doctrine of issue estoppel applies, and that allowing Ms. Walji to rely on those allegations would enable an abuse of process. Issue estoppel applies, submits the Employer, where the issues were raised or should have been brought forward with proper diligence in earlier proceedings, there was no right of appeal, and there were full participatory and due process rights: OPSEU (McNally) and Ontario (Ministry of Transportation), GSB No. 2009-1749 (09-09-25 Decision) (Brown); Tsaoussis (Litigation Guardian of) v Baetz, 1998 CarswellOnt 3409 (CA); OPSEU (Primo) and Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2014- 2911 et al (18-11-01 Decision) (Misra). In this case, the Employer maintains that: (1) the 2014 grievance raised the issue of discrimination in the very staffing actions cited in paragraphs 6 and 7 and all aspects of that claim could have been presented and argued with proper diligence; (2) the hearing afforded full due process protections and the Grievor had representation by the Union; (3) there was no right of appeal, as decisions of the Board are final and binding; and (4) while the decision does not provide written reasons, this was on express agreement of the parties noted in the decision, and consistent with Article 22.16 of the Collective Agreement. If the absence of written reasons for a decision were to provide grounds to relitigate the - 5 - issues that it decided, the Employer submits, the Article 22.16 system would break down. The Employer points out that issue estoppel, like the doctrine of res judiciata more generally, protects finality of decision making, judicial economy, and consistency of decision making, while preventing forum shopping. [7] The Union responds that it is not seeking to relitigate the issues decided by Arbitrator Leighton, and is not seeking a remedy. Rather it seeks to lead evidence concerning those issues to provide context, to show a pattern of discrimination. The Union refers me to George Brown College of Applied Arts and Technology and OPSEU (Lee), 2016 CarswellOnt 14658, [2016] O.L.A.A. No. 77, 128 C.L.A.S. 260. [8] As Arbitrator Misra stated paragraph 25 of Primo, supra: [25] The arbitral jurisprudence is clear that, except in exceptional circumstances, res judicata and issue estoppel may be applied where a prior award has dealt with the substantial matter between the parties in a forum permitting the full and fair airing of relevant arguments that, with reasonable diligence, were available at that time. At the core of the considerations in applying these concepts is a desire to prevent an abuse of the arbitration process to the detriment of ongoing relationships between parties. Arbitrators have recognized that there must be a balancing of the interests of fairness in the litigation process with promoting finality and certainty in the parties’ ongoing relationship, and that this balancing may require the application of res judicata or issue estoppel to put an end to a matter. The Board has emphasized the importance of finality, even in cases involving human rights claims: see McNally, supra, at paragraphs 21 to 27. At paragraph 29 of Primo, Arbitrator Misra considered that issue estoppel applies equally to the Article 22.16 process: [29] The parties have agreed that decisions made pursuant to Article 22.16 have no precedential value, and that is all I can reasonably infer. In all other respects, there is nothing in either the collective agreement nor in the Leighton decision that I can take to clearly state or imply that the Grievor should, despite having participated in the mediation-arbitration process, have the right to re-litigate issues that had led to the filing of her March 2013 Grievance. Had that been what the Grievor and Union wished to do at that time, that Grievance could have been withdrawn without prejudice before it was litigated. It is obvious that is not what occurred, as the Leighton decision issued, and reference is made to the Vice Chair having considered the submissions of the parties and the jurisprudence of the Board before denying the grievance. [9] In this case, the issue of whether the staffing actions described in paragraphs 6 and 7 were discriminatory was raised on the face of the August 15, 2014 grievance, which alleged a violation of Article 3 of the Collective Agreement. That issue was or could have been with proper diligence fully canvassed in the course of proceedings before Arbitrator Leighton. The Union does not contend otherwise, or that the proceedings were in any way procedurally deficient, or that they were not final. Rather, the Union’s position is that evidence regarding those staffing actions should be heard to provide context, specifically by showing a pattern of discrimination. But there is no way to do this without reopening the very issues that Arbitrator Leighton’s - 6 - decision disposed of fully and finally by dismissing the grievance. The George Brown College decision is clearly distinguishable from this case. In that decision, arbitrator Bendel allowed evidence of how the grievor’s manager behaved in response to an earlier classification grievance that she had filed, in support of the harassment grievance that was before him, notwithstanding that the classification grievance had been resolved by an earlier arbitral award. However, as Arbitrator Bendel pointed out, the evidence of alleged harassment would not impeach the earlier award on the merits of the classification grievance. The issues raised by the two grievances were distinct. That is not the case here. [10] Paragraphs 6 and 7 are struck on grounds of issue estoppel. [11] As a result, I need not consider the Employer’s second set of arguments – that paragraphs 6 and 7 should be struck for being untimely, in that they allege a pattern of events extending back more than three years from the date of the grievance. [12] The Employer’s third argument is that paragraph 10 should be struck because it constitutes a complaint that one of Ms. Walji’s colleagues was given an opportunity to work in a management position that is not covered by the Collective Agreement. The Employer submits that the Board has no jurisdiction over the staffing such positions, including with respect to claims that such staffing was not done in accordance with the Human Rights Code: OPSEU (Schnoflak) and Ontario (Ministry of Community Safety and Correctional Services), 2017-3409 (19-11-19 Decision) (Petryshen); OPSEU (Ahmed) and Ontario (Ministry of Transportation), 2013-2757 (14- 08-26 Decision) (Nairn). [13] The Union responds that while the position in question is not a bargaining unit one covered by the Collective Agreement, it is not seeking a remedy in relation to that position, but rather simply seeking to adduce evidence to show context and to provide a full timeline on positions that the Grievor was looking to move into. [14] I agree with the Employer that this Board cannot adjudicate a claim that the management position in question was filled contrary to the Human Rights Code. As Arbitrator Petryshen concluded in Schnoflak, supra, at paragraph 9: There is no provision in the OPSEU Agreement which gives an employee covered by that Agreement a right to apply for a management position. The complaint about discriminatory treatment in this instance is not in relation to a matter covered by the OPSEU Agreement and I do not have a general jurisdiction to deal with allegations of discrimination in employment that are beyond the scope of the OPSEU Agreement. See also Ahmed, supra, at paragraphs 44 and 45. However, on its face paragraph 10 does not make such a claim. Paragraph 10 simply states that Ms. Walji’s colleague obtained a temporary management position after receiving an opportunity to work in a higher-level bargaining unit position. Proof of this might be arguably relevant to the grievance, for example by being probative of the value of the kind of bargaining unit job opportunities that are the subject of the grievance. For this reason, I decline to strike paragraph 10. Nonetheless, for the purposes of these - 7 - proceedings the Statement of Particulars will be understood not to include an allegation that MK received an opportunity to work in a business administrator role at Vanier, classification MO7010, Finance 31 in a manner contrary to the Collective Agreement or the Human Rights Code. [15] The fourth ground presented by the Employer in support of its motion is that several paragraphs in the Statement of Particulars are not capable of supporting the claims advanced in the grievance. [16] The Employer contends that paragraphs 12 to 16, 18 and 19, which allege events postdating the grievance, should be struck because are not probative of whether Ms. Walji was discriminatorily denied a job opportunity as of the date of the grievance. The Employer submits that the complaints that are the subject of a grievance are crystalized and defined in the grievance procedure, and that allegations of subsequent events can be relevant only to the extent that they are probative of the allegations made at the time of the grievance. In this regard, the Employer refers me to the following decisions: OLBEU (Koonings and Froner) and LCBO, GSB No. 1992- 3483 (21-12-95 Decision) (Stewart); Religious Hospitallers of Hotel-Dieu of St Joseph of the Diocese of London v Ontario Nurses Association, 1995 CarswellOnt 1424; OPSEU (Fortin) and Ontario (Ministry of Finance), 2017 CarswellOnt 21771 (GSB) (Luborsky). The Employer maintains that none of the allegations contained in these paragraphs is relevant to determining whether providing opportunities to MK constituted racism. Rather, submits the Employer, the post-grievance allegations are essentially separate ones that should not be added to the complaints that were defined and crystallized in the course of the grievance procedure. It relies in support of this argument upon Koonings, supra, in which Arbitrator Stewart refused to hear evidence of conversations similar to earlier ones alleged in the grievance to have constituted harassment. She concluded that the subsequent conversations were put forward as separate allegations of impropriety and did not fall within the scope of the grievance. The Employer also submits that this case is analogous to OPSEU (Barker) and Ontario (Ministry of the Solicitor General), 2018-1146 (20-01-03 Decision) (Gee) in which Arbitrator Gee concluded that given the separation in time between events prior to the grievance and those alleged to have taken place afterwards, evidence of the subsequent events would be of no assistance to adjudicating the merits of the grievance. [17] Further, the Employer contends, paragraphs 9,10, 18 and 19 are not probative of what the grievance alleges because they make allegations only about positions with respect to which Ms. Walji expressed no interest, and make no claim that any other racialized individual sought or was deprived of the opportunities in question. The Employer maintains that allegations of discrimination are not relevant simply because they occur within the 3 years prior to an allegation that the Grievor was discriminated against; they must be of assistance in proving the discrimination that the Grievor alleges as of the date of the grievance: Barker, supra. [18] Finally, the Employer points out that Ms. Walji’s grievance is an individual one, not a group or policy grievance, and submits that therefore allegations concerning the - 8 - treatment of other employees can only be relevant to the extent that they shed light on the Grievor’s claims that she was deprived of Collective Agreement rights. [19] The Union responds that the grievance raises allegations of a continuing course of conduct, and that paragraphs 9 to 16, 18 and 19 constitute part of it. The Union notes that a pattern of discrimination can take time to become evident. The central question at this stage, in the Union’s submission, is whether, taken together, the facts alleged in the Statement of Particulars could constitute a pattern of systemic discrimination. The Union points out that the Grievor has alleged numerous incidents in which non-racialized employees, including someone that Ms. Walji had been asked to train, were given non-posted assignments and development opportunities while the Employer continued to advise her that similar opportunities with respect to which she had expressed an interest would be posted. The Union argues that paragraphs 9 to 16,18 and 19 allege incidents probative of such discrimination. The Union submits that post-grievance evidence probative of a pattern of discrimination or that corroborates facts and circumstances existing prior to the filing of the grievance is admissible, and that therefore post-grievance allegations of such a continuing course should not be struck: Ontario Public Service Employees Union (Patterson) v. The Crown in Right of Ontario (Ministry of Public Safety and Security), GSB# 2001-0925, 2001-0949 (Leighton); Toronto (City) and CUPE, Local 79, 1999 CarswellOnt 6822, [1999] O.L.A.A. No. 446, 56 C.L.A.S. 277 (Starkman). The Union cautions that the standard for particulars is arguable relevance, and that determinations of relevance should be made at a hearing and not as a preliminary matter on a motion to strike: Ontario Public Service Employees Union (Jackson) v. The Crown in Right of Ontario (Ministry of Children, Community and Social Services), GSB# 2019-1995; 2019-2941; 2020-1545 (Banks). Finally, the Union adds that the Grievor could file a new grievance in relation to events subsequent to the date of the grievance, and that no useful purpose would be served by requiring a new grievance every time the Grievor experiences an additional incident of discrimination. [20] The question on a motion to strike particulars for lack of relevance is whether, even if accepted as true, they could not serve to demonstrate a collective agreement breach alleged in the grievance because they are not arguably probative of any such breach: see Jackson, supra at paras 36-41, and the Board decisions discussed therein. [21] The first step in addressing the Employer’s motion is to therefore identify the collective agreement breaches alleged in the grievance. [22] In this case the grievance presents very broadly worded claims, including: “systemic discrimination against racialized and marginalized workers within the Ministry of MCSCS, particularly as it relates to discipline”; “the exclusion of black employees not afforded the same opportunities, acting assignments, and promotions as my non- ethnic counterparts at Toronto South Detention Centre”; and that “discrimination is prevalent through-out the selection and interview process as the employer does not embrace the diversity of having ethnic, racialized, and marginalized personnel assigned to competition or selection process”. However, the factual allegations in the particulars are quite a bit narrower. The particulars contain no allegations of fact - 9 - relating to discipline. Moreover, they contain no allegations of fact relating to the exclusion of any racialized workers other than Ms. Walji from career opportunities. [23] For the purposes of this motion, the claims made by the grievance must be understood to be those alleged as of the date of the grievance and subsequently particularized. As Arbitrator Stewart noted in Koonings, supra, the Collective Agreement contemplates complaints being defined and crystalized in the course of the grievance procedure, which implies that the outer limits of a grievance’s scope are set as of the date it is filed, unless the parties agree otherwise. The importance of particularizing allegations is recognized by the parties in Article 22.14 of the Collective Agreement, and by the Board in its decisions under that Article: Jackson, supra, at paras 25 to 33 and the decisions discussed therein. The purpose of obligations to particularize allegations is to ensure that proceedings are both efficient and fair. For these reasons, the scope of evidence that may be heard at arbitration hearings can be confined to the scope of factual allegations in the particulars. In this case the Employer asks me to strike particulars that it considers to have no relevance to the specific claims set out in the Statement of Particulars. The Employer’s motion starts from the position that the scope of the grievance is defined by the Statement, and implicitly insists on the Employer’s rights to rely on that Statement as defining the scope of the grievance. [24] Because paragraphs 6 and 7 of the Statement are struck, the only paragraphs setting out events that had taken place as of the date of the grievance are paragraphs 8 through 11. In these paragraphs, Ms. Walji alleges, in essence, that in the period between January 2016 and December 2018: (1) she was denied a career development opportunity in an Assistant Business Administrator position and told that it would be posted, when a colleague with family ties to a member of management, MK, had earlier received a similar opportunity without it having been made available to colleagues with more service; and (2) MK received an opportunity to serve as an Assistant Business Manager, despite the fact that Ms. Walji had earlier made requests for an opportunity in this position and had been told that it would be posted. The grievance claims that these events reflect the prevalence of discrimination in the Employer’s selection processes, and that as a racialized employee Ms. Walji has not been given the same development opportunities as non- racialized employees, despite multiple requests on her part. The question I must consider is therefore whether the post-grievance allegations could serve to demonstrate that these two alleged instances of differential treatment reflected discrimination contrary to Agreement that was prevalent in the Employer’s selection processes. [25] A party may seek to prove post-grievance allegations if doing so would be probative of what is alleged as of the date of the grievance. Both the Union and the Employer have referred in argument to decisions indicating that post-grievance evidence should be admitted where it is sufficiently probative of what is alleged as of the date of the grievance. This is well established in arbitral case law. Paragraphs 12 to 16, 18 and 19 allege in essence that between May 2019 and March 2020: (1) Ms. Walji three more times asked to be placed into positions that offered career development - 10 - opportunities and each time was told that the position would be posted; and (2) in three more instances non-racialized employees with a family relationship to a member of management were placed into development opportunities without competition. The alleged post-grievance events are quite similar to those alleged as of the date of the grievance. The separation in time is relatively short, with the first post-grievance events allegedly happening about 3 to 4 months after the date of the grievance, and the last about a year and one month following that date. In my view, if proven, the alleged post-grievance events, given their similarity and proximity in time to alleged pre-grievance events, could arguably serve to demonstrate that Ms. Walji’s treatment as of the date of the grievance reflected discrimination embedded in the Employer’s selection processes. I cannot conclude at this stage of the proceedings that the allegations relate to distinct instances of alleged impropriety, as in Koonings, or to instances too remote in time, as in Barker. [26] I also do not agree with the Employer’s argument that paragraphs 9,10, 18 and 19 are not probative of what the grievance alleges because they make allegations only about positions with respect to which Ms. Walji expressed no interest. Ms. Walji’s claims are in essence that she was denied opportunities similar to ones made available to non-racialized colleagues, in a manner that reflected discrimination embedded in selection practices. It is not necessary to prove that she expressed an interest in every opportunity obtained by a non-racialized employee in order to prove such a claim. [27] The Employer’s fifth argument is that the post grievance allegations should be struck because they are not sufficiently probative of what the grievance alleges. The Employer cites Hospitallers of Hotel-Dieu, in which the majority of an arbitration board chaired by Arbitrator Watters declined to hear evidence of fresh occurrences of adverse treatment forming part of an alleged continuous pattern of harassment or discrimination. The Union responds that it would be premature to make such determinations, and that the appropriate standard for determining whether allegations should be struck is arguable relevance: Jackson, supra. I agree with the Union’s position. The determination in Religious Hospitallers was made in the course of a hearing, on the basis of a careful weighing of the probative value and potential prejudicial effects of similar fact evidence in the context of a developing factual record. It is in my view premature at this stage to weigh in this way the value of evidence not yet tendered that is arguably probative of what is alleged in the grievance. [28] Finally, the Employer submits, relying on Ontario Public Service Employees Union (Deprophetis) v. The Crown in Right of Ontario (Ministry of Labour), GSB#2008-3994 (Dissanayake), that it would not be appropriate to adjudicate whether the Employer had contravened the collective agreement rights of other employees. Since this is an individual grievance rather than a group or policy grievance, the Employer maintains, it would not make good labour relations sense for this Board to make determinations concerning the rights of employees who are not party to the grievance. This could also lead, the Employer points out, to a situation in which, if such an employee were later to file a grievance relating to such matters, an arbitrator would either have to - 11 - accept an earlier Board ruling despite the grievor’s not having been a party to the relevant proceedings, or would have to revisit the legal and factual conclusions in that ruling. [29] While I see merit in the principles set out in Deprophitis, they are in my view not applicable in this case. The Grievor has provided no particulars alleging that any other employee’s rights were breached. The particularized claims are in essence simply that she was denied opportunities similar to those given to non-racialized colleagues, on the basis of her race. This is not a case in which I would be required to adjudicate whether the Employer had breached rights of employees other than the Grievor. [30] The Employer has therefore not demonstrated that paragraphs 9, 10,12 to 16, 18 or 19 should be struck. The Motion to Dismiss [31] The Employer submits that the particulars of the grievance, even if accepted as true, would not prove a violation of the Collective Agreement, because they would fail to show that the difference in Ms. Walji’s treatment was based on race or any other prohibited ground. The Grievor’s case, the Employer maintains, depends on her being able to show discrimination in the Employer’s posting the Assistant Business Administrator position despite Ms. Walji’s request to be assigned to it as a development opportunity. The Employer submits that it had no obligation to provide Ms. Walji with an opportunity to act in the Assistant Business Administrator role, and that MK had prior experience in a business administrator position when he was assigned to each of the positions in question. The Employer insists that more is required to demonstrate that race was a factor in its decision-making. The Employer notes that once the Assistant Business Administrator position was posted Ms. Walji and others had the opportunity to compete for it. The allegations in the Particulars, even if accepted as true, would in the Employer’s view establish no link between the decision to post the position and Ms. Walji’s race. [32] The Union submits in response that the bar for dismissing a grievance for failing to disclose a prima facie case is high: the moving party must show that the facts alleged, if accepted as true could not amount to an arguable violation of the Collective Agreement. This, the Union submits, means that it would be impossible to arrive at the conclusion that the Collective Agreement had been breached: Ontario Public Service Employees Union (Pinazza et al.) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB#2002-0840 (Herlich). In this case, the Union maintains, the particulars allege numerous incidents in which non-racialized employees were given non-posted opportunities while the Grievor continued to be advised that opportunities that she sought would be posted. The Union submits that the evidence proving these allegations will establish a pattern of systemic discrimination. It notes that for the purposes of this motion the allegations must be accepted as true. Further, the Union contends, it is not appropriate at this stage of the proceedings to weigh the quality of evidence without - 12 - hearing it: Ontario Public Service Employees Union (Evangelista et al) v. The Crown in Right of Ontario (Ministry of Attorney General), GSB#2009-1091 (Harris) at para. 11. The Union submits that only in the clearest of cases should the Board decline to hear a matter. In this case, the Union contends, I must simply ask whether it would be impossible that the Union’s allegations, if proven, could amount to racial discrimination. For that purpose, the Union insists, I cannot accept the assertions of fact made by the Employer, because the task at this stage is not to weigh the evidence. [33] In reply, the Employer maintains that the test for failure to state a prima facie case is not whether it is impossible to conclude that the collective agreement was breached, but rather whether the facts asserted in support of the grievance are not capable of establishing the elements necessary to substantiate the violation alleged: Ontario Public Service Employees Union (Grievor) v. The Crown in Right of Ontario (Ministry of Health), GSB# 2016-2440 (Anderson) at para 24. [34] I agree with the Employer’s characterization of the question raised by its motion. As Arbitrator Anderson wrote in Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson), quoted in the Grievor decision, supra, at paragraph 21: 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 of 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 a 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 of a breach on the application of that theory, the motion should be dismissed. [35] Accordingly, I must consider whether the particulars asserted in support of the grievance, if accepted as true, are capable of supporting a conclusion that the Employer’s decisions prior to the date of the grievance amounted to discrimination based on race. To succeed on its motion, the Employer must demonstrate that the particulars are not capable of supporting a conclusion that race was a factor in those decisions: Jackson, supra, at para 30. [36] The Employer contends in support of its motion that MK had prior experience in a business administrator role when he was assigned to each of the positions in question. However, as discussed by Arbitrator Anderson in Martin, supra, a motion to dismiss at this stage is based on the Union’s particulars and theory of the case, not the Employer’s. In this case, it cannot be assumed on the basis of the facts alleged by the Union that MK had such experience, or that it accounted for the Employer’s decision. - 13 - [37] The Employer also submits that it had no obligation to provide Ms. Walji with an opportunity to act in the Assistant Business Administrator role, and that once that position was posted she and others had the opportunity to compete for it. The Union does not contend otherwise. But even a discretionary decision to deny an opportunity can be discriminatory if race is a factor in it. These submissions do not significantly advance the Employer’s position. [38] In the end, the argument in support of the motion to dismiss comes down to the Employer’s rather generally stated contention that more is required than what the Union alleges to demonstrate that race was a factor in the Employer’s decision- making. The Union’s claim is essentially this: that one can infer from: (1) the Employer’s decisions within a three year period to twice deny Ms. Walji a development opportunity that she sought while granting similar opportunities to a less experienced non-racialized individual with a family relationship to a member of management; and (2) similar things happening again three more times relatively soon after the date of the grievance, that Ms. Walji’s race was a factor in each of the Employer’s decisions on her career development requests. I cannot conclude at this stage, without hearing any evidence, that those allegations if proven are not capable of supporting the inference that the Union says I should draw. Decision-making based on family relationships could arguably have adverse impacts in which race is a factor. If proven, a series of decisions close in time to give career development opportunities to non-racialized individuals with family relationships to a member of management, juxtaposed with other decisions to not give similar opportunities to a racialized employee with more experience, could arguably support an inference that race was a factor in the first two of the latter decisions. Whether the grievance can succeed will therefore depend on the evidence. [39] The motion to dismiss the grievance must therefore be denied. Dated at Toronto, Ontario this 29th day of July 2021. “Kevin Banks” ________________________ Kevin Banks, Arbitrator