HomeMy WebLinkAbout2008-3753.Louis.11-11-16 DecisionCommission de
Crown Employees
Grievance Settlement
UqJOHPHQWGHVJULHIV
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
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GSB#2008-3753
UNION#2008-0502-0019
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Louis)
Union
- and -
The Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFOREVice-Chair
Daniel Harris
FOR THE UNION
Jane Letton
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER
Susan Munn
Ministry of Government Services
Labour Practice Group
Counsel
HEARINGAugust 18 and October 27, 2011.
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Decision
The Proceedings
[1]This Decision deals with evidentiary matters. The allegations herein include that the
grievor was the victim of racial discrimination at the hands of co-workers. She says that
she brought these concerns to the attention of her manager to no avail. The Union put the
Employer on notice that it may seek to call evidence of another employee to the effect
that they too brought such allegations to the VDPHPDQDJHU¶VDWWHQWLRQDJDLQWRQRDYDLO
The Employer objects to the introduction of such evidence.
[2]This Decision also deals with a request by the Employer that the grievor provide
GLVFORVXUHRIKHUDWWHQGLQJSV\FKLDWULVW¶VFOLQical notes and records, given that the relief
claimed includes a claim for damages said to have arisen from the nexus between the
PDQDJHU¶VDFWLRQVDQGKHUPHGLFDOFRQGLWLRQ
[3]Finally, in the course of dealing with the alleged incidents at the time, the grievor
contacted members of the Ontario Provincial Police and made complaints against some of
her co-workers. The Employer seeks disclosure of the O.P.P. records in that regard. The
Union does not resist that request. Accordingly, that Order will go as asked.
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[4]The Employer submitted that the only purpose of leading the evidence of the other
employee is to establish that the manager was likely to have behaved in a similar fashion
here. It is a form of similar fact evidence, the probative value of which is outweighed by
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its prejudicial effect. It is not related to the claims here and would greatly expand the
scope of these hearings without adding probative value.
[5]The Union submitted that the general environment within which harassment and racial
discrimination occurs is relevant, and the proposed evidence would support a finding that
the manager did not help the grievor. The Union submitted that because racial
discrimination is difficult to prove, wider latitude should be given in tendering general
HYLGHQFH LWJRHVWRWKHJULHYRU¶VDOOHJDWLRQthat there was a poisoned work environment.
[6]In reply, the Employer submitted that the evidence is only being tendered to show the
PDQDJHU¶VSURSHQVLW\WRKDYHHQJDJHGLQWKe conduct alleged, which is not supported by
the authorities.
Reasons for Decision on Issue #1
[7]The evidence sought to be introduced by the Union is to the effect that, like the grievor, a
co-worker did not receive training. Others criticized the quality of her work at a meeting.
The grievor rose to her defence, but the manager took no action. The co-worker believes
that the lack of training and events at the meeting were racially motivated. The evidence
is being led to establish that the manager has a propensity not to deal with such events, as
is alleged here.
[8]In my view, this evidence is only being led to establish such a propensity. Accordingly,
it is inadmissible. In OPSEU (Deprophetis) and Ministry of Labour GSB 2008-3994
(Dissanayake) the Board said the following at paragraph 7:
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Now I turn to the second aspect of the proposed evidence to the effect that Ms New
LQWHUIHUHGZLWK03¶VGHFLVLRQPDNLQJDXWKRULW\ also. Union counsel characterized this as
³DGPLVVLEOHVLPLODUIDFWHYLGHQFH´:KLOHthis Board is not bound by strict rules of
evidence applied by courts of law, those rules have a rational basis and are helpful in the
exercise of the discretion the Board has. Similar fact evidence that shows only that an
individual is the type of person likely to have engaged in the conduct alleged is inherently
fraught with danger, In criminal law, this haVEHHQGHVFULEHGDV³RQHRIWKHPRVWGHHSO\
Maxwell v. D.P.P., [1935] A.C. 309 at 317
rooted and jealously JXDUGHGSULQFLSOHV´
(H.L.).
Similar fact evidence to become admissible, must meet the initial test that it has
relevance for some purpose other than that it tends to show that the individual was the
type of person likely to have engaged in the alleged conduct.
Issue #2: Disclosure of Medical Records
[9]To reiterate, the Union says that the grievor suffered racial discrimination at the hands of
her co-workers, and the Employer did not intervene. She was denied a safe and healthy
work environment. The grievor seeks damages for pain and suffering. She says that her
psychiatric illness was caused by these events. The relief claimed includes that the
Employer pay for professional counseling to treat these ills, and the grievor seeks
reimbursement for vacation days she used to top-up days she took as sick leave at a
reduced rate of pay.
[10]The Employer seeks disclosure of all arguably relevant documents in the possession of
WKHJULHYRU¶VWUHDWLQJSK\sicians. The Employer says that the documents are relevant to
the remedies claimed by the grievor.
[11]7KH8QLRQVD\VWKDWWKHJULHYRU¶VSV\FKLDWrist will provide a report, which should be
sufficient disclosure. It resists disclosure ofWKHSV\FKLDWULVW¶VFOLQLFDOQRWHVDQGUHFRUGV
and any reports from the psychiatrist to the grLHYRU¶VJHQHUDOSUDFWLWLoner; it says that her
medical privacy should be respected.
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[12]In reply, the Employer submitted that the grievor has put her health into issue, and the
documents requested must be produced because they are arguably relevant to that issue.
Reason for Decision on Issue 2.
[13]As was the case in Jones and Ministry of Community Safety and Correctional Services
PSGB-2005-3536 (Leighton) the grievor here has put her mental health at issue. She
claims general damages for the impact the EmplR\HU¶VDFWLRQVKDYHEHHQVDLGWRKDYHKDG
RQKHUPHQWDOKHDOWK7KXVWKHSV\FKLDWULVW¶V notes and records and the notes and records
of her treating physicians pertaining to her meQWDOKHDOWKDUHDUJXDEO\UHOHYDQW³:KLOH
privacy concerns here are stiOOYDOLGLWLVDOVRQHFHVVDU\WREDODQFHWKH(PSOR\HU¶VULJKWV
WRQDWXUDOMXVWLFHDQGDIDLUKHDULQJ´ Jones at paragraph 10).However, confidentiality
conditions are appropriate. Only counsel for the Employer and one advisor may review
the documents, no copies are to be made and the documents may only be used for the
purposes of the current complaints. Any variation to these terms may be spoken to.
th
Dated at Toronto this 16 day of November 2011.
Daniel Harris, Vice-Chair