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HomeMy WebLinkAbout2019-0051.Walji.2022-11-22 DecisionCrown 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#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 Farnaz Talebpour Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Regina Wong Treasury Board Secretariat Legal Services Branch Counsel HEARING October 25, 2022 - 2 - Decision [1] The parties agreed at a pre-hearing conference on May 9, 2022 that they would lead evidence through will-says subject to cross-examination. [2] At a hearing on October 25, 2022, the Employer raised several objections to the introduction of evidence contained in will-says disclosed by the Union. Objection to evidence in the Grievor’s will-say Arguments of the Parties [3] The Employer maintains that paragraphs 5, 6, 7 and 8, and the last two sentences of paragraph 22 in the Grievor’s will-say should not be admitted because they relate to alleged violations of the Collective Agreement that were fully and finally adjudicated in the earlier decision of this Board in OPSEU (Walji) and Ontario (Ministry of Community Safety and Correctional Services) GSB 2014-2693, March 30, 2015 (Leighton). The Employer emphasizes that earlier in these proceedings the Board struck particulars of allegations to which this evidence relates from the Union’s statement of particulars, precisely for that reason: OPSEU (Walji) and Ontario (Ministry of the Solicitor General) GSB 2019-0051, July 29, 2021 (Banks) at paras 6 to 10. The Employer maintains that allowing such evidence into the record would serve no purpose beyond enabling the Union to relitigate issues that the Board has previously decided, and that this would constitute an abuse of process: Canadian Union of Public Employees, Local 79 v. City of Toronto, [2003] 3 S.C.R 77, at para 35. [4] The Union responds that it is not seeking to relitigate those issues, but rather to prove the actions that the grievor took to ensure that she got her fair share of employment opportunities, both as context and as a pattern of what she was doing to advance her career at the Toronto South Detention Centre (TDSC). The Union maintains that not - 3 - including this evidence would be unfair, as it would deprive the Grievor of the opportunity to show the “long patterns that she had been subjected to” in attempts to advance her career there. The Union relies on George Brown College of Applied Arts and Technology and OPSEU (Lee), 2016 CarswellOnt 14658, at para 14. Decision [5] I do not see how the Union could show that the events recited in the paragraphs in dispute were part of a pattern of discrimination that the grievance alleges without re- opening the discrimination claim resolved by Arbitrator Leighton. Proving that the Grievor took actions to advance her career does not, on its own, assist her claim that she was subject to discrimination. Her earlier actions could only be relevant to the discrimination that the grievance alleges if and to the extent that they were met with similar discrimination by the Employer. The Grievor and the Union are simply trying to demonstrate that Employer actions found by the Board not to have violated the Collective Agreement were in fact part of a pattern of discrimination alleged to have continued thereafter. The Board has consistently and with good reason refused to allow issues to be relitigated in this way. That is why earlier in these proceedings I struck particulars of the allegations that the Grievor and the Union seek to prove in the disputed paragraphs: see OPSEU (Walji) and Ontario (Ministry of the Solicitor General) GSB# 2019-0051, July 29, 2021 (Banks) at paras 6 to 10, distinguishing at para 9 the George Brown College decision, supra. [6] Paragraphs 5 to 8, and the last two sentences of paragraph 22 of the Grievor’s will- say statement are not admissible in evidence. Objections to evidence contained in the will-says of Joan Marshall Wilkinson and Chanda Mansuto Arguments of the Parties - 4 - [7] The Employer objects to admission of all of the evidence contained in the will-say of Joan Marshall Wilkinson, except for that contained in paragraph 6 of that document, and to the admissibility of the entire will-say of Ms. Mansuto. [8] The Employer maintains that those portions of the Marshall Wilkinson will-say and all of the Mansuto will-say except for paragraphs 12, 22, 23, 24, 25, 26, and 27 are not relevant to the particulars of the grievance. It contends that admitting this evidence would prolong the proceedings and in manner prejudicial to the Employer, contrary to good labour relations, and contrary to the practice of this Board: 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). [9] Further, the Employer argues, for these paragraphs in the will-says to be relevant to the Grievor’s claims, the Union would have to demonstrate that the Employer had breached rights of Ms. Marshall Wilkinson or Ms. Mansuto, as the case may be, despite the fact that neither has filed a grievance and that there is no group grievance or policy grievance alleging that their rights were breached. The Employer maintains that this would be contrary to good labour relations and Board practice: Ontario Public Service Employees Union (Deprophetis) Union and The Crown in Right of Ontario (Ministry of Labour), GSB#2008-3994, 2010 CanLII 64226 (ON GSB) (Dissanayake). [10] Third, the Employer says that that much of Ms. Mansuto’s will-say is not probative of the pattern of discrimination alleged in the grievance because it relates to a subsequent time period, or complains about staffing decisions completely different from those at issue in the particulars of Ms. Walji’s grievance. The Employer refers me to Shreve v. The Corporation of the City of Windsor 2012 HRTO 270 (CanLII), and to McWilliam v. Toronto Police Services Board and Angelo Costa, 2017 HRTO 78 (CanLII). - 5 - [11] Fourth, the Employer submits that outside of paragraph 6, Ms. Marshall Wilkinson’s will-say it is so vague as to be prejudicial, and is largely hearsay and therefore should not be admitted into evidence. [12] Finally, the Employer maintains that while paragraphs 12, 22, 23, 24, 25, 26, and 27 are relevant to the particulars of the grievance, the bulk of them are hearsay and for that reason should not be admitted. [13] The Union responds that arbitrators have a discretion to admit hearsay evidence subject to taking its hearsay nature into account in determining what weight it should carry. The Union maintains that all of the evidence should be admitted because it supports the Grievor’s positions, by showing that other racialized people were experiencing similar results to Ms. Walji when they tried to get temporary assignments to advance their careers at TDSC. The Union points out that it is not seeking a remedy for Ms. Marshall Wilkinson, but rather to show a pattern of systemic discrimination. The Union refers me to the following authorities: Canadian Labour Arbitration, 5th Edition § 3:54, and 3:55; Hotel Dieu Grace Hospital and National Automobile, Aerospace, Transportation and General Workers Union Canada and its Local 2458, 2004 CanLII 66320 (ON LA); Rainy River District School Board and Elementary Teachers Federation of Ontario, 2014 CanLII 41242 (ON LA). Decision [14] The grievance was filed on February 25, 2019. The Union provided particulars of the grievance prior to a hearing on June 11, 2021. At that hearing I heard arguments from the parties on the permissible scope of particulars, and on July 29, 2021 I issued a decision on the issues raised that the hearing. The particulars of the grievance remaining following that decision define the scope of this grievance. [15] Ms. Walji and the Union have not particularized any allegations with respect to which any of the evidence in Ms. Marshall Wilkinson’s will-say document, except that contained in paragraph 6, would be probative. Similarly, only paragraphs 12, 22, 23, - 6 - 24, 25, 26, and 27 of Ms. Mansuto’s will-say could be probative of allegations that Ms. Walji and the Union have particularized. The remainder of the will-says describe experiences of their authors that simply did not form part of the particulars of Ms. Walji’s grievance. [16] As I said in my July 29, 2021 decision in this matter, at paragraph 23: 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. [17] The evidence in question is not relevant to the grievance as particularized by the Grievor. There is no reason in this case to allow the Grievor to effectively expand the grounds of her grievance at this late stage of the proceedings. To do so would undermine the efficiency and fairness of the proceedings, greatly prolonging them. It would do this on the eve of hearings on the merits, defeating the purpose of the early disclosure to which the Parties agreed in Article 22.14. See Jackson, supra, at paras 25 to 33 and the decisions of the Board discussed therein. [18] Further, the Employer is correct that in order for these parts of Ms. Mansuto’s or Ms. Marshall Wilkinson’s evidence to be probative of Ms. Walji’s claims of a pattern of discrimination, the Board would have to make findings of fact that the Employer had discriminated against either or both of them. I agree with the Employer that it would be contrary to good labour relations and the jurisprudence of this Board to make such a determination in the absence of a grievance that raised a claim covering either of them. As the Board said in Detrophetis, supra, at paragraph 13: - 7 - If management application of policy and procedure has impact on the rights of several bargaining unit employees, it is open for the union to file a policy grievance or group grievance on behalf of the affected employees. This has not been done. The only grievance before the Board is the individual grievance of the grievor. It is simply not appropriate to litigate and make findings of fact, even indirectly, on allegations of contraventions which have not been grieved, and which potentially may become the subject of a grievance. [19] I decline to admit any of Ms. Marshall Wilkinson’s will-say, except for its sixth paragraph. [20] I decline to admit any of Ms. Mansuto’s will-say except for paragraphs 12, 22, 23, 24, 25, 26 and 27. [21] Any hearsay evidence contained in the will-says is admitted subject to consideration of what weight, if any, it would carry. [22] I need not consider the Employer’s other grounds of objection. Dated at Toronto, Ontario this 22nd day of November 2022. “Kevin Banks” ________________________ Kevin Banks, Arbitrator