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HomeMy WebLinkAbout2021-0523.Grievor.24-01-22 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# 2021-0523; 2022-8627; 2022-8628; 2022-11745; 2022-11859 UNION# 2021-0533-0005; 2022-0533-0023; 2022-0533-0024; 2022-0533-0031; 2022-0533-0032 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of Public and Business Service Delivery) Employer BEFORE Bram Herlich Arbitrator FOR THE UNION Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING January 8, 2024 -2 - Decision [1] On agreement of the parties the grievor (who will be referred to as such) has been anonymized. [2] By email dated January 17, 2024, I advised counsel that I would not be granting the union’s request for an adjournment. These are my reasons. [3] At the time set for the hearing to commence, the grievor had not yet made an appearance. The matter was stood down for 30 minutes in the event the grievor had been unavoidably detained. At the conclusion of the 30-minute period, he had still not appeared and the hearing commenced in his absence. The union proceeded to make the motion detailed below. Approximately one hour later, after the union concluded its submissions on the motion but before the employer had commenced its submissions in response, the grievor made his appearance and had the opportunity to confer with union counsel before we heard the employer’s submissions. [4] This matter has six further days of hearing scheduled between now and May 24, 2024. The union has made what it acknowledges is a highly unusual and perhaps even unprecedented request. It asks that the hearing in this matter be adjourned, pending the result of proceedings which have been commenced at the Human Rights Tribunal of Ontario (the “HRTO”). [5] The case before me is factually complicated. There are five grievances. They encompass claims that the employer has failed to abide by the terms of a settlement executed in March 2013. There are also claims of more recent vintage that relate, broadly speaking, to questions of the grievor’s capacity to work, whether and to what extent he is in need of accommodation and, if so, whether the employer has offered appropriate accommodations. But for a small number of days, the grievor has been out of the workplace for a period approaching four years. [6] Counsel advised that the grievor has also filed a complaint with the HRTO. It is common ground that there is significant overlap (but not necessarily complete identity) as between the territory covered in that complaint and that of the grievances before me. The employer is the sole responding party in the complaint before the HRTO and advises that it has formally sought the mirror image of what the union now seeks before me. The employer has asked the HRTO to defer its consideration of the grievor’s complaint pending the disposition of the grievances before me. The HRTO’s response to that request is pending. [7] The union’s request to defer to the HRTO is borne of its view that the relationship between it and the grievor is “broken”, to the point where the union cannot meaningfully or effectively represent the grievor at this Board. The union asserts that the grievor has lost all confidence in his union, in its counsel, in this Board and in the instant arbitration process. Any respect he may have once had for any of the above has been latterly replaced by contempt and indignation. This conclusion is -3 - evident from the many emails the grievor has forwarded, up and down the corporate ladders of both parties. It is not necessary to review all of those communications. I note that, among the various verbal tirades launched by the grievor are email communications which included employer counsel as a recipient and included copies of previously private communications between the grievor and union counsel. The latter expressed understandable frustration at the strategic impact of such a tactic on the part of the grievor. The grievor has also copied me on some of these communications and has also once emailed me directly, following an inappropriate and rebuffed telephone effort to discuss the case directly with me. In addition to the above the union also advises that the grievor has been erratic and unreliable in his contact and communication with the union, further hampering its efforts to properly represent him. [8] For the purposes of this decision, I accept, at face value, the union’s description of the challenges it has faced in working with the grievor. Indeed, it would not have been surprising, given the difficulties as described, if the union had considered simply withdrawing the grievances, once and so long as it was persuaded that the relationship between it and the grievor was utterly irredeemable. Perhaps influenced by the care required to meet its statutory obligation (an obligation not monitored by this tribunal) the union has not chosen this course, opting instead to attempt to craft an approach that preserves the grievor’s options. Similarly, it would appear that the grievor has not taken any active formal steps to forsake these proceedings in favour of those pending at the HRTO. And to close this circle of what has not happened, the employer has not sought to have the instant matters dismissed by virtue of the grievor’s participation or, rather, lack thereof (although it did indicate that, depending upon future events, it might opt to pursue just such a result). [9] So we are left then to consider the union’s request for an adjournment. The union’s request certainly is unusual, but it is not entirely unprecedented. In Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2008 CanLII 32795 (ON GSB) (Lynk), the union sought to adjourn the GSB proceedings pending the determination of complaints the grievor had filed at the HRTO. While the facts of that case are different, the union’s request to adjourn was grounded in similar considerations. In some respects, however, the conflict between the union and the grievor was more marked and acute than is the case before me. In that case, according to the union, it was being required to advance a position in the grievances that was in direct conflict with the position it was advancing at the HRTO; the conflict in our case, while real, is different and does not exhibit the same kind of legal conflict of interest. [10] The union in the cited case was the responding party in one of the two HRTO complaints filed by the grievor. The facts relied upon in that complaint overlapped, to some extent, with those at issue in at least one of the four grievances that were before the GSB. And in respect of those facts, the union, in defending the HRTO complaint, which impugned the conduct of the local union president, disputed the facts alleged by the complainant. Those facts, as alleged by the grievor/ -4 - complainant would likely have to form part of the union’s case in one of the grievances. As union counsel submitted in that case: …Ms. Therrien [the grievor] asserts that Mr. Johnson, the president of Local 108, acted towards her in a discriminatory fashion based on her disability and marital status. Mr. Eady stated that the Union has denied her version of the facts, and plans to defend itself vigorously, but it is now in an impossible position because the evidence that it is attacking in the human rights complaint process overlaps significantly with the evidence that it has to consider when advancing her four grievances before this Board … Consequently, a number of the facts that Ms. Therrien has alleged against the Union in her human rights complaints would have to be led by the Union in advancing her grievances, facts that are presently in significant dispute in the human rights process. [11] While acknowledging that “the relationship between [the union] and the grievor is presently marked by tension and strain” the Vice-Chair concluded that the union had not met the onus of establishing that an adjournment was warranted or necessary. [12] In arriving at that conclusion, the Vice-Chair formulated a taxonomy of factors relevant in the consideration of adjournment requests. And, in the particular cases where issues overlap with those in another forum, the Vice-Chair enumerated the following (at p. 12): I. Which forum has the broader jurisdiction to resolve all of the issues at play; II. Which forum is further ahead in the proceedings; III. Which forum has more expertise; IV. The likelihood of inconsistent decisions and duplicative efforts; V. The degree of overlap in the issues; VI. The existence of human rights issues, and the particular importance attached to their efficient resolution; VII. The degree of prejudice to the parties; and VIII. The impact on the efficient determination of fact-gathering and legal issues. -5 - [13] After weighing the various factors, the Vice-Chair concluded that while the determination was not an easy one, the factors leaned towards denying the adjournment. Perhaps uppermost in the consideration was that ultimately, the conflict pointed to by the union, while real, was less dramatic or significant than earlier suggested. The contested facts formed an integral part of the HRTO complaint against the union, but were merely the starting point in the narrative of the grievances which complained, for example, about how the employer handled the grievor’s subsequent complaints. A determination of the disputed facts was not necessarily required or otherwise critical to the litigation of the grievances. [14] When I consider the specific factors cited above, I see none that clearly favours the union’s adjournment request and some which favour forging ahead with the instant proceedings. Indeed, the union did not seriously suggest that a global consideration of these factors would advance its case. Thus, I need not review the factors in individual detail. I will consider only the first two, very briefly. [15] Despite the glacial pace of progress in this matter (although I note that there has already been an interim settlement of a request for interim relief in this case as well as an agreement to focus on the litigation, at least initially, on the grievor’s most current employment circumstances), the instant proceedings are well- advanced in comparison to those at the HRTO. We have hearing dates scheduled, some already held, we have heard some viva voce evidence; the HRTO has yet to determine whether and when hearing dates will be held and that determination alone may yet take some time. [16] Further, there is undeniably a very high degree of overlap in the adjudicative competence and jurisdiction of the GSB and the HRTO to deal with the complaints in question, at least to the extent that they raise issues of human rights, disabilities and accommodation whether under the collective agreement or the Human Rights Code. Although the parties have agreed that this will not be the immediate focus of our proceedings, the grievances include a complaint that the employer has failed to comply with the terms of a prior settlement between the parties. The employer reminds us that the alleged breach of a settlement is essentially a contractual matter not likely to form part of the HRTO’s inquiry. [17] But while a consideration of the enumerated factors, does not support its request, the union, in its submissions, eschewed those factors in favour of a consideration of what it submitted was the central principle underlying a proper determination, as the Vice -Chair in the cited case observed: “The onus in this case is on the Union to establish that fairness is ultimately on its side…” [18] And the union argues that fairness dictates that it not be required to proceed with the litigation of these grievances when the relationship between the union and the grievor has become so utterly dysfunctional. In the circumstances, the union asserts, it is impossible for it to responsibly and adequately represent the grievor. And to require it to do so would be equally unfair to the grievor. The grievor appears to have far greater confidence in the HRTO than in the instant process. -6 - He should be permitted to pursue that avenue of adjudication and then, possibly, return to this Board to address matters not dealt with by the HRTO. [19] I do not find the union’s appeal to fairness to be persuasive. There is no doubt that the relationship between the union and the grievor is in a lamentable condition. But it is not the function of this Board to monitor, regulate, repair or correct relations between members and their bargaining agents. Those are matters inter se. Should the union justifiably feel that the grievor’s conduct has made it impossible for it to properly represent him, there are options available to it which do not require the imprimatur of this Board. Similarly, if the grievor prefers to have his complaints dealt with by the HRTO, there are avenues available to him to effect that result. Neither the union nor the grievor have taken any such formal steps. [20] The union’s request for an adjournment is denied. Dated at Toronto, Ontario this 22nd day of January, 2024. “Bram Herlich” _________________________ Bram Herlich, Arbitrator