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HomeMy WebLinkAbout2019-1741.John.23-11-02 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# 2019-1741; 2019-2145; 2019-2464; 2019-2915; 2020-0812; 2020-0813; 2020-0814; 2020-1790 UNION# 2019-0228-0007; 2019-0228-0011; 2019-0228-0014; 2019-0228-0005; 2020-0228-0021; 2020-0228-0022; 2020-0228-0023; 2019-0228-0018 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (John) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE D.J.D. Leighton Arbitrator FOR THE UNION Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Jordanna Lewis Treasury Board Secretariat Labour Practice Group Counsel HEARING July 16, 2021; May 19, July 5 and 6, December 14, 2022 -2 - Decision Introduction [1] There are eight grievances before me, seven of which allege, inter alia, that the Ministry of the Attorney General discriminated against Ms. Fayhorn John, a permanent full-time client service representative (CSR) while working at the Brampton Courthouse, contrary to the Human Rights Code, R.S.O. 1990 c.H. 19 and the collective agreement. This preliminary decision addresses the ministry's motion to dismiss all eight grievances because the particulars provided by the union, if taken as proven, fail to establish a prima facie case of discrimination, and therefore should be dismissed. An alternative argument urged me to strike some parts of the particulars. In addition, counsel for the ministry's position is that one of the grievances was filed outside of the time limits in the collective agreement. [2] The Union opposes the motions, taking the position that the grievances represent a series of events that are not isolated and that grieve a pattern of discrimination against Ms. John. The grievances were filed over a period of approximately six months between October 2019 and April 2020. They include allegations of racial and family discrimination and anti union animus. The Grievor also grieved that she was discriminated in a job competition held in 2019. In the union’s theory of the case the grievances considered together will establish discrimination and therefore the motions should be dismissed. The particulars support a prima facie case, and the grievances should be heard on the merits. [3] For the purpose of the motions, the ministry acknowledged that the facts in the particulars must be taken as true. However, should the matter proceed to the merits of the case, it reserved its rights to challenge the particulars and defend against the allegations. The motions proceeded on the basis of stated agreed facts, documents, and the particulars. No oral evidence was called. -3 - The Motion to Dismiss the Grievances [4] Counsel agreed that the legal principles applicable to a motion alleging that the particulars of a grievance fail to make out a prima facie case are well established at the Board. [5] Counsel for the ministry referred to the outline of the applicable legal principles in OPSEU (Solomon) and Ministry of Children, Community and Social Services, 2019 CanLII 126475 (ON GSB). Arbitrator Anderson cites his earlier decision in OPSEU (Martin) as follows: The test for a no prima facie case motion is set out in Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson): [3] There is little disagreement between the parties as to the principles applicable to a motion alleging the particulars of a grievance fail to make out a prima facie case. In order to succeed, the moving party, in this case the Ministry, must establish that the “facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged”: Couture, 2011 CanLII 100922 (ON GSB), (Dissanayake). Arguments or conclusions do not constitute allegations of fact. Accordingly, they need not be accepted as true for the purposes of a no prima facie case motion. Arbitrator Anderson goes on in Martin to summarize what the Board must consider in applying the test for a prima facie case motion: 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. (at para. 6) -4 - Union counsel also drew my attention to this paragraph emphasizing that the particulars must be assessed against the union’s theory of the case. The particulars must only show that they could support a violation of the collective agreement. He also noted that Arbitrator Anderson explained that in assessing particulars, it was important not to look at the paragraphs of the particulars in isolation. The question to be assessed is whether the union has provided particulars that if taken as a whole are capable of supporting the theory of the case. The Test for a Prima Facie Case Alleging Discrimination [6] Counsel for the ministry also relied on Solomon, supra, for the test to be considered in assessing whether particulars of a grievance alleging discrimination satisfy a prima facie case motion, citing the reasoning in the Ministry of Health and OPSEU (Grievor), 2019 CanLII 78764 (ON GSB). In this case, Arbitrator Anderson stated that the test for assessing whether a complainant has satisfied a prima facie case after a full hearing on the merits was similar to the principles that must be applied in a motion to dismiss a grievance for failure to provide adequate particulars, relying on and adopting the reasoning in Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII). [7] One of the issues before the Court of Appeal in Peel Law Association was whether the Divisional Court applied the correct test for satisfying a finding of a prima facie case of discrimination. The Court of Appeal decided that the test was not correct. The test applied by the Divisional Court was as follows: In order to prove a prima facie case of discrimination, there must be evidence to support the following findings: [5] a distinction or differential treatment; [6] arbitrariness based on a prohibited ground; [7] a disadvantage; and [8] a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered. (para.53) (Emphasis added) -5 - In reviewing this test, the Court of Appeal commented that the term “causal nexus” does not appear in the case cited by the Divisional Court as authority for this language. The Court also observed that, traditionally, this test is not used by human rights tribunals. [8] The Court of Appeal held that the Divisional Court’s use of the word “causal” with “nexus” in the test it applied was incorrect and too strict: I do not think it acceptable, however, to attach the modifier "causal" to "nexus". Doing so seems to me to elevate the test beyond what the law requires. The Divisional Court's requirement of a "causal nexus" or a "causal link" between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause. (para.60) The Court then relied on the test articulated in one of its own decisions. In Shaw the following three elements of the test were laid out: 1. That he or she is a member of a group protected by the Code; 2. That he or she was subjected to adverse treatment; and 3. That his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment. Shaw v. Phipps, (2012) ONCA 155. The Court held that all that is required by this test is “that there is a connection between the adverse treatment and the ground of discrimination. The ground of discrimination must somehow be a “factor” in the adverse treatment.” (para.59) [9] The Court stated that for the adjudicator to find a breach of the Code, he or she had “to be satisfied, after considering all the evidence, that the appellants were members of a group protected by the Code, that they were subjected to adverse treatment, and that the race and colour were factors in the adverse treatment. The first two elements were not at issue in this case. Whether the appellant’s race and colour were factors in their questioning by the librarian was the issue to be decided. (paras. 126-127) Evidence of the questioning was enough to shift the evidentiary burden to the respondents to explain why the librarian questioned the applicants right to be in the lawyers’ lounge. -6 - [10] The Court of Appeal then went on to summarize the evidence, which the Human Rights Tribunal heard that led to the conclusion that it was a factor in the adverse treatment. One of the findings was that the librarian was completely unable to offer a credible non-discriminatory explanation for her decision to challenge the applicants as to whether they were lawyers and allowed to be in the lawyers’ lounge. [11] Having reviewed the Court of Appeal’s explanation of the proper test and on the burden of proof in satisfying a prima facie case of discrimination, Arbitrator Anderson concluded as follows in Ministry of Health, supra, at para. 39: While the burden of proof remains on the claimant throughout, because the reasons for the treatment lie within the responding employer’s knowledge, relatively little affirmative evidence is required to establish a prima facie case of discrimination, which gives rise to an “evidential burden” on the employer to provide a response justifying its actions. (Full cite omitted) Consequently, in applying this test to a motion to dismiss a grievance for inadequate particulars, one must be careful to keep in mind that “relatively little affirmative evidence is required to establish a prima facie case of discrimination” in assessing particulars, especially before dismissing a grievance without a hearing. [12] This Board has clearly held that if a complainant is a member of a protected group, for example race, and describes an adverse event that may be inferred to be because of her race, a prima facie case of discrimination in the particulars is satisfied. (Solomon, supra) Decision on the motion to dismiss the grievances without a hearing [13] The theory of the union’s case is that the grievor has suffered discrimination by the ministry because of her race, adversely affecting her career, in one instance, in a job competition, in her role as a union representative, and as a person seeking accommodation for family status. Having reviewed the particulars against this theory, I am satisfied that the particulars are capable of supporting the alleged violations of the collective agreement and the Code in seven of the grievances before me. -7 - [14] In one example, the particulars indicate that Ms. John, who is Black, attended a ministry meeting on diversity and inclusion during Black History Month in 2017. During that meeting the grievor asked her supervisors what plans they had to “engage in promoting Black history month and the position of Black employees in the OPS.” The particulars state further that in a subsequent meeting a manager in the unit advised Ms. John that the supervisors felt targeted and complained about the way she asked questions, which made them uncomfortable. In the Union’s submission accusing the grievor of being offensive in asking these questions will demonstrate a racist view of Black females. Like the Peel Law Association case, supra, the reasons for the manager’s comments to the grievor about her asking questions in an offensive way, lie within the ministry’s knowledge and thus it has the burden to provide a response that speaks to its actions. [15] I have decided after careful review of the particulars that the ministry’s motion to dismiss the grievances for failure to establish a prima facie case must be denied for seven of the grievances. [16] Since I am of the view that the particulars are capable of supporting the allegations if proven as true, in seven of the grievances, I will not comment further, except to note what I did not rely on. In coming to this decision, I have not relied on the particulars referring to the OPS independent third-party workplace review on anti - black racism issued in 2021 or the report provided. These particulars were not helpful to me in deciding whether the grievor may have personally suffered discrimination for the purposes of a prima facie motion. However, I do not rule out the possibility that this report could be admissible in the hearing on the merits of the grievances. [17] I have decided that grievance (2019-2464), which grieves, inter alia, general workload issues and that management was not disciplining other employees properly, must be dismissed. I am of the view that it does not fit within the union’s theory of the case. -8 - Decision on the Motion to Strike [18] I was also asked to strike certain paragraphs of the particulars. Where the ministry is asking for paragraphs to be struck, the argument, essentially is that the evidence behind the particulars is not relevant, predates or post dates the grievances. These are all questions of the relevance of the evidence, and I am persuaded that these decisions are better made with the context of the evidence on the merits. Thus, I am satisfied that this motion is largely premature. See Ministry of Labour and OPSEU (Lunan) 2015 GSB 2013-0513 et al (Leighton) and Ministry of Children, Community and Social Services (Jackson) 2021 GSB 2019- 1995 et al (Banks). [19] To the extent that ministry objected to particulars in what the union called “background”, including those that date back to about two to three years before the first grievance was filed, I have decided to follow the well established guideline of this Board in cases alleging discrimination and harassment, contrary to the Code, that it is appropriate to allow relevant evidence for approximately three years before the date of the grievance. Thus, evidence going back to October 2016, if relevant and reliable, may be admissible. See for example, Ministry of Public Safety and Security and OPSEU (Patterson) 2003 CanLII 5902 (ON GSB) (Leighton) and Ministry of Children, Social and Community Services and OPSEU (Lavoie et al), 2015 GSB 2012-2206 and 2012-2965 (Sheehan). [20] One last issue to address is whether the grievance alleging a breach of the grievor’s rights under family status was filed late. I would note first that the delay was not substantial, but also, there was no evidence before me that the ministry put the union on notice that it would be raising this issue until counsel for the ministry was assigned to the case. Thus, I am of the view that the ministry has waived the right to object. -9 - [21] Having decided that the matter should proceed for seven of Ms. John’s grievances, I direct the Registrar to canvass the parties to set dates for a hearing on the merits of the case. Dated at Toronto, Ontario this 2nd day of November 2023. “Deborah J D Leighton” Deborah J D Leighton, Arbitrator