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Home My WebLink About2002-2375.Ranger.11-05-16 Decision Commission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pO Fax (416) 326-1396 7pOpF GSB#2002-2375, 2004-1217, 2005-2232, 2005-2768, 2006-0421, 2006-0632 UNION#2002-0411-0038, 2004-0411-0071, 2005-0411-0080, 2005-0411-0081, 2006-0446-0001, 2006-0446-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union Union (Ranger) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Deborah J.D. Leighton FOR THE UNION Don Eady Paliare Roland Rosenberg Rothstein LLP Barristers and Solicitors FOR THE EMPLOYER Sean Kearney Ministry of Government Services Legal Services Branch Senior Counsel Paul Meier Ministry of Government Services Legal Services Branch Counsel HEARINGFebruary 11, 2011. - 2 - Decision INTRODUCTION [1] On January 18, 2010 the board released the GHFLVLRQRQWKHPHULWVRI5REHUW5DQJHU¶V grievances upholding both his complaint that he had suffered discrimination and harassment at the Ottawa Carleton Detention Centre (OCDC) and that the employer had failed in its duty to accommodate him, when he became ill as result of the harassment and discrimination. Since that date the parties have worked diligently to resolve the outstanding issues on remedy. To further that end they entered an agreement on NovePEHUWKH³1RYHPEHU$JUHHPHQW´ WKDW outlined a procedure for dealing with the outstanding remedial issues. The parties agreed to LQFOXGHDOO0U5DQJHU¶VRXWVWDQGLQJ grievances to the date of this agreement. Included on that list is a grievance filed February 16, 2006, seeking to set aside minutes of settlement executed in 1998 (the 98 MOS) because the employer had failed in the years after the settlement to provide him with a workplace free of discrimination and harassment. This is an interim decision on the HPSOR\HU¶VPRWLRQWRGLVPLVV0U5DQJHU¶V)Hbruary 16, 2006 grievance and to exclude evidence of events which occurrHGGXULQJWKHJULHYRU¶VHPSOR\PHQWDW/¶2ULJQDO-DLOLQ and 1997. [2] The November Agreement also provided that instead of tendering viva voce evidence on the issue of remedy, the parties would prepare statutory declarations to be filed with the board to supplement the record on the merits of the case.7KHJULHYRU¶VVWDWXWory declaration includes UHIHUHQFHVWRRFFXUUHQFHVZKHQKHZRUNHGDW/¶Orignal Jail, which were the subject matter of the 98 MOS and predate the events of the January 18, 2010 decision. [3] The employer seeks to have the February 16 2006 grievance dismissed and objects to the LQFOXVLRQRIWKH/¶2ULJQDOHYLGHQFHLQWKHVWatutory declaration on three grounds: 1) the grievance is untimely, having been filed eight years after the execution of the 98 MOS; 2) the evidence is barred by the 1998 MOS, which settled all matters and complaints arising out of the JULHYRU¶VHPSOR\PHQWDW/¶2ULJQDO WKHLVVXHRIZKHWKHUWKLVHYLGHQFHLVDGPLVVLEOHZDV decided by the board in a decision dated July 29, 2005, which held that the evidence of these events was not admissible. - 3 - [4] Counsel for the employer argued that any one of these objections should prevent the grievance going forward and the information being included in the statutory declaration. He noted further that the board could only hear the evidence of the evHQWVWKDWRFFXUUHGDW/¶2ULJQDO if it granted the 2006 grievance. The grievance seeks to have the 1998 MOS set aside on the grounds that the employer failed to provide a safe workplace free of harassment and discrimination after the signing of the agreement. There is a further reason to preclude the JULHYDQFHLQFRXQVHO¶VVXEPLVVLRQ7KHEHKDYLour which is complained about after the 98 MOS is the subject matter of the grievances decided on January 18, 2010. [5] Counsel for the union relies on the language of the November Agreement wherein the parties agreed to a process to resolve the outstanding remedial issues flowing from the January 18, 2010 decision. Counsel submitted that the parties were attempting to find a sensible way to put all of the grievances that the grievor had made up to the signing of this agreement before the board for decision without calling many witnesses and unnecessarily prolonging the hearing. He argued that the parties decided to put all of the issues before me and this is why the union LQFOXGHGDGHVFULSWLRQRIHYHQWVRFFXUULQJDW/¶2ULJQDOLQ0U5DQJHU¶VVWDWXWRU\GHFODUDWLRQ Counsel emphasized that the purpose of deciding on this procedure was to resolve all outstanding claims for the grievor. [6] Counsel for the union noted that the parties were aware of the 1998 MOS and my decision in 2005 when they made the agreement in November 2010. Further, counsel argued that not all RIWKHHYLGHQFHRIHYHQWVDW/¶2ULJQDOVKRXOGEHH[FOXGHG7KHXQLRQVXEPLWWHGWKDWDQ,,8 investigation substantiated the grLHYRU¶VFRPSODLQWVDW/¶2ULJQDO&RXQVHOVDLGLIWKHXQLRQLV VXFFHVVIXOZLWKVWDQGLQJWKHHPSOR\HU¶VPRWLRQKHUHKH will seek disclosure of the IIU reports on WKHJULHYRU¶VFRPSODLQWVPDGHGXULQJKLVHPSOR\PHQWDW/¶2ULJQDO&RXQVHODUJXHGWKDWWKLV evidence is probative of what damages I ought to award in the circumstances of this case. [7] Thus, counsel relied on the November Agreement which provides that all of the outstanding claims and grievances are to be before me. He argued that I should hear all of the evidence and give it whatever weight it is due at the end of the day. - 4 - DECISION [8] The central issue before me is whether the union should be permitted to tender evidence of HYHQWVZKLFKRFFXUUHGDW/¶2ULJQDOLQDnd 1997, which were the subject matter of minutes of settlement signed in 1998 and which this board held was not admissible in an interim decision dated July 2005. The union supports its claim to be allowed to submit this evidence on the strength of the February 16, 2006 grievance and the November 2010 Agreement between the parties, which provides in part at paragraph 9: The parties agree and jointly submit that for the purposes of this proceeding, the GSB shall exercise its full authority in finally and fully determining any and all outstanding claims, grievances, disputes, complaints, actions and causes of action concerning the Grievor up to the date of the signing of this Agreement, including its decision and the above- noted Grievances. The purpose of this agreement was to expedite the hearing into the remedies of this case and to determine any and all outstanding claims, grievances, and disputes that the grievor has up to the date of the signing of the November Agreement. On the basis of a grievance challenging the 98 MOS, filed in February 2006, some eight years after the agreement, the union argues that it is reasonable to submit evidence of events that occuUUHGDW/¶2ULJQDOZKLFKSUHGDWHVWKH026 [9] Having carefully considered the submissions of the parties I have decided to dismiss the February 16, 2006 grievance and not to allow the information relating to these events to be LQFOXGHGLQWKHJULHYRU¶VVWDWXWRUy declaration for three main reasons. First, the February 16, 2006 grievance is not timely. SecoQGWKHHYHQWVDW/¶2ULJQDOZKLFKWKHXQLRQZLVKHVWRUHO\RQ now, in the remedial phase of this hearing, are the subject matter of the 98 MOS. Third, this evidence was excluded by an order of this board in July 2005. [10] The February 16, 2006 grievance is certainly not timely, having been filed some eight years after the settlement and many years after the events at OCDC. There is no evidence before me as to the reason for the delay. There is ample evidence that the grievor was aware of his right to grieve generally. Moreover, the complaint alleges that the MOS was breached because the grievor was not provided with a workplace free of discrimination and harassment at OCDC. These are the very events that were grieved in 2002 and are the subject of one of the complaints decided February 18, 2010. Thus, the grievor could have included the allegations in his 2002 grievance, that these subsequent events were a breach of the 98 MOS, but he failed to do so. - 5 - Thus even on a generous interpretation the grievance is four years late with no excuse for the delay. [11] More importantly, I have decided that in essence the union is seeking to introduce the HYLGHQFHRIHYHQWVDW/¶2ULJQDOIRUWKHYHU\VDPH purpose that they sought to tender the evidence on the merits of this case back in 2005. Counsel for the union submitted that this evidence was probative of what damages I should award in the circumstances at the end of the day. This was the position argued by the union and rejected in my 2005 interim decision. In 2005 the union argued that it did not ...seek to introduce this evidence for the purposes of proving the merit of the grievances before the board. Thus the proposed evidence is tendered only to provide proof of the extent of the harm suffered by the grievor and as basis for the argument for remedial entitlements. (at p.3) In 2005 counsel for the union argued that the board should make an exception to the general principle that evidence which is the subject matter of minutes of settlement is not generally admissible. [12] In my 2005 interim decisiRQ,UHMHFWHGWKHXQLRQ¶VDUJXPHQWDQGJUDQWHGWKHHPSOR\HU¶V PRWLRQWRH[FOXGHHYLGHQFHRIWKHJULHYRU¶VFRPSODLQWVDW/¶2ULJQDOEHIRUHWKHGDWHRI'HFHPEHU 8, 1997, the date of the grievance. In making this decision I relied in part on the clear language of the 98 MOS: clause 2 of the MOS provides as follows: The parties agree that these Minutes of Settlement and any consideration are deemed to be no admission of liability whatsoever, on the part of the Crown, nor will these Minutes and/or the underlying facts ever be referred to in any other administrative, quasi-judicial or legal proceeding. ,QUHMHFWLQJWKHXQLRQ¶VDUJXPHQWWRDGPLWWKH/¶2ULJQDOHYLGHQFH,KHOGDVIROORZV I have come to the conclusion that it would be inequitable and prejudicial to the employer in this case to defend the allegations of discrimination and harassment ZLWKUHJDUGWR/¶2ULJQDO-DLOVRORQJDIter they have occurred, but primarily because they were the subject of Minutes of Settlement. The parties to Minutes of Settlement must be able to rely on the terms which they have negotiated in good faith. Further, it would not be fair to require an employer to preserve evidence indefinitely to defend itself against the possibility of having to refute allegations, which were the subject of Minutes of Settlement. - 6 - In support of the current motion employer counsel argued that it would be inequitable and SUHMXGLFLDOWRDOORZWKH/¶2ULJQDOHYLGHQFHQRZ. He submitted that the November Agreement was never intended to allow the union to revisit matters that were settled or the subject matter of a decision of this board. I agree. I am satisfied that the language of paragraph 9 of the 1RYHPEHU$JUHHPHQWGRHVQRWVXSSRUWWKHXQLRQ¶VVubmission here that it should be able to rely on evidence of events which occurred fifteen years ago and which were never admitted by the employer. It would be inequitable and prejudicial to the employer to allow this evidence now. [13] The reasons for excluding this evidence in 2005 are as applicable today. It is a fundamental principle of the board that without some significant reason to make an exception, once a complaint has been fully and finally settled, the settlement will be upheld. The principle, referred to as the recognition of the sanctity of settlements is essential to labour relations between the parties. This board will not countenance a settled complaint coming back in another guise. The February 16, 2006 grievance is an attePSWWREULQJEDFNWKH/¶2ULJQDOJULHYDQFHVLQ another guise and seek additional compensation. The grievor received compensation in the 98 MOS. Therefore, for the same reasons enunciated in my 2005 decision the evidence must not be admitted. >@7KHWKLUGUHDVRQIRUJUDQWLQJWKHHPSOR\HU¶VPRWLRQKHUHRQWKHDGPLVVLELOLW\RIWKLV evidence needs no explanation: the decision in 2005 clearly decided the issue and the February 16, 2006 grievance does not change the outcome. [15] One final issue must be addressed. The union made a special request for Mr. Ranger to be permitted to make a ten minute statement to the board regarding the impact of the grievances on him. Counsel suggested that the statement be made after thHXQLRQ¶VDUJXPHQWLQFKLHIRQ damages. Counsel for the employer noted that the request was exceptional and in effect this would allow the grievor a third opportunity to speak to the adverse impact of the events at OCDC and the aftermath on him. He asked that I stipulate a time limit and direct the grievor to address only events that occurred at OCDC and after that, if I decided it was appropriate. I have GHFLGHGWRDOORZWKHXQLRQ¶VUHTXHVWKHUH0U. Ranger shall be provided with ten minutes to address the board on the impact of his grievances after his counsel has made his submissions in - 7 - chief on remedy. Mr. Ranger must restrict his comments to events that were the subject matter of his 2002 and 2005 grievances. [16] Thus, for the reasons above the February 16, 2006 grievance is hereby dismissed and paragraphs 11 to 90 in the grievoU¶VVWDWXWRU\GHFODUDWLRQPXVWEHVWUXFNIURPWKHJULHYRU¶V statutory declaration. I note for the record that this decision does not affect the evidence on the record on the merits of the case. The union may rely on anything on the record of the case to make its submissions on remedy. th Dated at Toronto this 16 day of May 2011. Deborah J.D. Leighton, Vice-Chair