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Home My WebLink About2013-1169.Ranger.22-05-27 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB#2013-1169; 2013-1170; 2016-0302; 2016-2388; 2018-0102; 2018-0615 UNION#2013-0424-0002; 2013-0424-0003; 2016-0424-0001; 2017-0424-0001; 2018-0424-0008; 2018-0424-0010 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Ranger) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Daniel Harris Arbitrator FOR THE UNION Craig Flood Koskie Minsky LLP Barristers & Solicitors Counsel FOR THE EMPLOYER Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel HEARING May 5, 2022 - 2 - Decision [1] This decision deals with an objection by the Union to viva voce evidence which the Employer intends to call. The evidence is that of a police officer of the Ottawa Police Service, Detective Leanne Blais, who witnessed an exchange between the grievor and a co-worker, Catherine McLaren. [2] The Union submits that the evidence is irrelevant because the grievor received a non-culpable letter of counsel related to his participation in the incident, which it says seals the facts of the matter. [3] The Union also submitted that the probative value of the evidence is outweighed by its prejudicial effect, and, finally, no foundation has been laid for the admission of this proposed evidence. [4] The Union submitted that the proposed evidence can only be relevant if it relates to the Employer’s response; that is, how the Employer did nor did not deal with the incident. The grievor subsequently received a five-day suspension, for a different matter, which was said to rest on this incident as part of the grievor’s record. It said that a properly established record speaks for itself. It also submitted that nothing put the Union on notice that the Employer would lead evidence about the incident itself. The Union also noted that it objected to the introduction of the written statement given to the Employer by the Detective Blais for the truth of its contents and consented as to its relevance only to the actions taken by the Employer in response to the incident. - 3 - [5] The Union submitted that it was not permissible to go behind a disciplinary or non- disciplinary response by an Employer to an incident such as this. It said that the record stands as the relevant outcome. That is, the fact that there was an outcome seals the facts. [6] The Employer submitted that the grievor gave evidence in chief over twelve hearing days, and the area manager, Jacqueline Grenon also gave evidence about the incident to which the police officer was a witness. It said that it seeks now to call the evidence of the officer to respond to the direct examination of the grievor and the cross-examination of the area manager. [7] The Employer also submitted that whether the grievor was counselled or disciplined for his part in the incident is a live issue that will be dealt with in closing submissions, which are a long way away. [8] In reply, the Union highlighted its earlier submission that the Rule in Brown and Dunn was not honoured, as there was no indication that the grievor’s evidence would be contradicted. The Union also submitted that the police officer’s statement was admitted for how the Employer responded and whether it was a letter of counsel or a letter of reprimand the result is the same; the Employer may not go behind the letter to litigate the facts of the incident. It said that the evidence from the grievor was with respect to the grievor’s relationship with Catherine McLaren, and this evidence cannot help with that. - 4 - [9] This hearing has taken many, many days to get to this point, with many, many more scheduled for its continuation. The issue of the admissibility of evidence regarding the incident between the grievor and Ms. McLaren was first addressed in my decision of May 7, 2015, more than seven years ago. The following excerpts from that decision deal with Catherine McLaren: [3] The grievor’s five-day suspension resulted from a verbal and physical exchange between the grievor and a coworker, Louise Beaulieu on March 4, 2013. In imposing the suspension the employer took into account a letter of counsel to the grievor dated December 20, 2010 as a result of a verbal exchange between the grievor and a different coworker, Catherine McLaren. (emphasis added) … [5] It is the union's intention to call evidence relating to prior incidents, which it says are part of a continuing course of harassment/discrimination against Mr. Ranger. The employer objects to such evidence being called because the incidents relied upon are subsumed in other, prior litigation before the Grievance Settlement Board either by way of retained jurisdiction of other Vice Chairs pursuant to Decisions of the Board or Minutes of Settlement entered into in relation thereto. [6] The employer specifically objects to the following issues being put before me in these proceedings: ... - Failure to address issues with Catherine McLaren: both parties intend to call evidence relating to the grievor's interactions with Ms. McLaren in December 2010. The union is seeking damages against the employer. The employer takes the position that the union may call evidence with respect to that incident in order to attempt to establish a course of harassing or discriminatory conduct. However, it says that the union may not reach back beyond 30 days prior to the filing of the grievance for damages. (emphasis added) . . . [8] Specifically with respect to the allegations involving Catherine McLaren, the union submitted that the employer’s failure to remedy that situation sounds in damages. It said that the employer’s submission that limiting liability for human rights issues to 30 days before the filing of a grievance is to give the offending party a "free pass", and no remedy at all for such events. The union submitted that there should be no limit to evidence or relief in a case such as this because - 5 - the claims are made under the Ontario Human Rights Code. It submitted that the Code permits the filing of a claim within one year of the last incident in a series of incidents. The union said that this timeline applies to the Grievance Settlement Board and grievances such as this one. . . . [10] As for the scope and impact of the allegations involving Catherine McLaren, it is settled law that the timeliness provisions for the filing of complaints to the Ontario Human Rights Tribunal do not apply to grievances determined here at the Grievance Settlement Board (OPSEU (Nitsotolis) and MGS, GSB 1337/12 (Nairn)). [11] The Board has held as a general rule that evidence of harassment and/or discrimination may reach back approximately 3 years. This is in recognition of the fact that there may be a course of conduct that is not immediately recognized as harassment and/or discrimination. It is only in the fullness of time that otherwise apparently innocent actions can be seen as part of such a course of conduct. In the circumstances of this case, the allegations involving Catherine McLaren fall within the generally accepted three-year rule. [12] It is also my view that it is premature to say that the remedy for these grievances would extend back only 30 days from the filing of the grievance. This interim award relates exclusively to the extent of evidence which can be led with respect to June 2013 grievances. The question of remedy is best left to the end of the case. The parties will later have the opportunity to make representations as to what remedy, if any, flows from the evidence led during the course of the hearing on the merits for grievance. [10] Given this earlier decision, it would be manifestly unfair to prevent the Employer from calling the evidence of Detective Blais, who witnessed the incident. From the very first days of this hearing it was evident that “both parties intend to call evidence relating to the grievor’s interactions with Ms. McLaren in December 2010." (May 7, 2015 Decision, paragraph six). [11] It is also evident from the May 7, 2015 decision that evidence relating to the Union’s allegation that there was a discriminatory and harassing course of conduct exhibited by the Employer against the grievor is admissible on the Union’s behalf. - 6 - It would be very unfair to prevent the Employer from answering such evidence, particularly when the Union was put on notice that the Employer would do so with respect to the McLaren incident. Further, the Union did not concede the admission of Detective Blais's written statement for the truth of its contents, thereby requiring that the officer attend and give oral evidence if the statement is to be lifted from its hearsay status. [12] Finally, there has been no determination of the status of the Employer’s response to the grievor’s involvement in the incident as culpable or non-culpable. The decision of May 7, 2015 was only dealing with particulars and a motion by the Employer to strike out portions of the Union’s particulars. It is misplaced to suggest that there was a final determination of whether the Employer’s response to the grievor was culpable or non-culpable. There was no evidence before me which could result in a final determination on this point. The Decision [13] The evidence of Detective Leanne Blais, relating to the incident between the grievor and Ms. McLaren is admissible as relevant, as not offending the Rule in Brown and Dunn and as being consistent with earlier rulings with respect to the Union’s allegations of the Employer having discriminated against and harassed the grievor and the evidence to be expected thereto. Dated at Toronto, Ontario this 27th day of May, 2022. “Daniel Harris” ________________ Daniel Harris, Arbitrator