HomeMy WebLinkAbout2015-1330.Dubuc.24 02-05 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# 2015-1330
UNION# 2015-0453-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Dubuc) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Bram Herlich Arbitrator
FOR THE UNION Wassim Garzouzi
Raven, Cameron, Ballantyne &
Yazbeck LLP
Counsel
FOR THE EMPLOYER Katie Ayers
Treasury Board Secretariat
Legal Services Branch
Counsel
WRITTEN
SUBMISSIONS
December 15, 2023
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Decision
[1] This matter has been on the docket of the Grievance Settlement Board for the
better part of a decade. The grievor was discharged from his position of Fire
Investigator, Office of the Fire Marshall in May 2015. For many reasons (some
undoubtedly more compelling than others), these proceedings have been
dramatically protracted and remain incomplete. Indeed, the instant decision will
not be a final one. I will deal only with the union’s motion that certain documents
be produced before we move closer to, though not necessarily yet arriving at,
the final phase of the litigation.
[2] But while my current task – the disposition of a request for production – is
limited and circumscribed, some minimal consideration of the context in which
the request arises will be instructive.
[3] As indicated, the discharge was effected in May 2015 and the grievance which
resulted in the proceedings before me, initially as a Vice-Chair of the
Grievance Settlement Board and, more recently, as a member of the Board’s
roster of arbitrators, was filed in the wake of the termination. The grievor had
close to 26 years of seniority at the time of his discharge. There is a single
grievance before me. It asserts that the discharge was without just cause and
that the grievor was subject to improper harassment and discrimination
contrary to the terms of the collective agreement and certain statutory
protections. Without necessarily limiting the parameters of the claim, the
grievance sought reinstatement and compensation, including a “make whole”
remedy as well as damages for harassment and discrimination; and for
defamation and loss of reputation.
[4] The parties and their then counsel (each party has had new counsel
retained/assigned twice over the years) first appeared before me in 2016. At
that time, they were able to agree on an interim without prejudice resolution
which saw the grievor returned to work on a temporary fixed term contract in a
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position different from (but perhaps even more highly rated than) his former
position. Such a start might have been taken to portend an amicable and
sensible resolution to the matter, but time has erased any such optimism.
Seven years later, while substantial progress has been made, the matter is still
not fully resolved.
[5] The grievor’s temporary return to work ended in 2018 and the parties directed
more of their attention to the litigation. Over the ensuing years there have been
numerous hearing days, adjournments, delays, and decisions, all punctuated
by continuing efforts at resolution, some of which were, at least in part,
successful. There were other reasons for delay, but the pandemic was chief
among them – for a significant period, the union sought to adjourn scheduled
hearing dates in the hope that in-person hearings would soon resume
(something which has yet to happen). The employer indulged the union’s
requests for adjournment, up to a point and, ultimately, virtual hearings
resumed.
[6] The most significant development occurred in July 2021 when the employer
advised the grievor that it was rescinding his termination letter and reinstating
him to his former position and that it intended to reimburse him for all lost
wages back to the date of his termination. That development, along with
ensuing discussions between the parties, resulted in a decision dated February
28, 2022, in which I found that the employer did not have just cause to
terminate the grievor. The employer was ordered to pay lost wages to the
grievor in an amount that the parties had agreed to. The decision also
recognized that there might still be remaining disputes between the parties with
respect to claims for additional compensation or other matters arising from the
reinstatement. The union was directed to identify and particularize any such
issues to create closure on the scope of remaining disputes.
[7] There was, however, one residual exception to that order and it is that
exception which gives rise to the present issue. The exception relates to what
was described as the grievor’s “concerns about the authorship of investigation
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reports”. The union was directed to make a request for production of
documents in relation to those concerns. In the event the employer agreed to
produce the requested documents, the union would be granted a further
opportunity to seek to amend or enlarge its claims and particulars as a result.
In the event the employer declined to produce the documents, I remained
seized. The union made its request, enumerating the 73 documents it seeks to
have produced. The employer has declined and objects to producing them.
The union seeks an order for their production.
[8] In its submissions, the union asserts that “… disclosure of the Reports, and an
opportunity for the Union to further articulate its position based on the contents
of the Reports, were explicitly contemplated in the Board’s February 28, 2022
decision.” While this submission is not entirely inaccurate, neither is it entirely
precise. It is true that the opportunity referred to (i.e. to review the Reports and
then amend or enlarge its particulars) was contemplated. It was not
guaranteed. It depended upon the occurrence of one of two things: voluntary
production by the employer or an order from this Board that the documents be
produced. The former will not happen, whether the latter will is the subject of
this decision. All the Union was guaranteed was the opportunity to seek an
order directing production. This is that opportunity.
[9] The production request is fuelled by the grievor’s concerns regarding the
production and maintenance of certain fire investigation reports within the
employer’s statutory mandate. In particular, the concern relates to reports that
the grievor worked on but had not yet been completed in the period leading up
to his suspension and termination. The “technical review” in these reports was
ongoing but incomplete at the time of the grievor’s suspension/termination.
And yet it appears that the grievor may continue to be listed as the Fire
Inspector of record in relation to the reports finalized after his
suspension/termination.
[10] In its submissions, the union explained why, in its view, the grievor’s concern
for his professional reputation is not academic:
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The role of Fire Inspector is prescribed under the Fire Prevention
and Protection Act. Because the Grievor has been identified as
the author of the reports in question, he can be summoned to
appear at a Coroner’s Inquest, or to a criminal or civil trial, to
speak to the contents of the reports. In these circumstances, the
Grievor cannot give credible testimony regarding the final content
and certification of the reports. Consequently, any of the reports in
question could easily be rejected by a court, all because the
Grievor’s testimony cannot be relied on. The Employer’s decision
to name the Grievor as the author of reports he did not finalize left
him (and still leaves him) vulnerable in his professional reputation
and raises ethical and legal ambiguities for the Employer. The
Grievor continues to experience anxiety over the ongoing
uncertainty of the situation.
[11] But even accepting (without deciding) that the grievor’s concerns are bona
fide, reasonable, and perhaps even justiciable in their own right, one cannot
lose sight of the fact that this is not an independent free-floating grievance
challenging the propriety of the employer’s conduct subsequent to the
termination. Rather, it is that termination which is the main subject of the
grievance.
[12] In fairness to the union, this is something it has acknowledged. Indeed, in the
very first decision in this matter (issued November 2, 2016 at paras. 3 and 4) I
observed as follows:
[3] The case the union advances falls broadly into two
categories. First, it asserts that the discharge was without just
cause. However, it also claims that the employer’s decision to
terminate the grievor was borne of improper motives. In support of
this latter claim, the union has filed some 17 pages of particulars
containing what it describes as its “positive allegations”...
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[4] The union is clear that, in adducing the evidence relating to
its positive allegations, it is not seeking any remedy in respect of
the events in question. Rather it seeks to rely on these events to
establish the pattern of improper conduct it asserts culminated in
the discharge. But while it seeks no remedy specific to the events
in question, it does assert the need to consider and litigate those
facts.
[13] And similarly, in its recent submissions, the union asserts that “the documents
[it seeks produced] are arguably relevant to the Board’s consideration of
whether the Employer terminated the Grievor in bad faith and continues to act
in bad faith by failing to take reasonable steps to protect the Grievor’s
professional reputation.” The initial reference to the relevance of the
documents to a finding of bad faith in the termination has not precluded the
union from indicating its intention to ultimately seek not only possible resulting
damages, but also an order that the Employer cease and desist housing and
circulating reports attributed to the Grievor that the Grievor did not author.
[14] The employer offered several grounds to support its opposition to the issuance
of the requested order. It reminded us that even accepting the union’s urging
that the documents sought to be produced are arguably relevant, arguable
relevance is a necessary though not necessarily a sufficient pre-condition to
production. And there are, it asserts, many reasons to deny the requested
production.
[15] The employer notes that I have already ruled (in a decision dated December 7,
2018) that allegations related to an investigation report finalized after the
grievor’s termination constituted an improper expansion of the scope of the
grievance. In that context, it makes no sense to countenance an order to
produce documents related to other investigation reports that were also
finalized after the grievor’s suspension/termination. Further, the employer
asserts that the union’s demand for the production of investigative reports and
ancillary materials related to some 32 different fires which occurred between
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January 2013 and September 2014 and which were the subject of
investigation by the Office of the Fire Marshall, is little more than a fishing
expedition. And, perhaps another side of that same coin, the employer submits
that the union has failed to lay any foundation to support any claim that the
reports may be defamatory or damaging to the grievor’s reputation.
[16] For the reasons which follow, I have determined that the union’s request for
production must be denied.
[17] I begin by noting that I accept the sincerity of the grievor’s expressed concerns
and anxieties associated with what he no doubt views as the peculiar way the
employer has maintained its reports.
[18] But the grievor’s sincere subjective views, standing alone, are insufficient to
warrant potentially embarking on a new evidentiary front in the current
litigation. A chief reason for my reticence in that regard springs from the
difficulty I see in the objective construction of any actual or possible current or
future scenario characterized by harm to the grievor or his reputation flowing
from the way the employer has maintained its investigation records. And even
if one of the grievor’s dreaded scenarios were to materialize, i.e. if he were
called to testify in an inquest or a court proceeding regarding a report he
worked on but did not complete, it is difficult to understand or even imagine
why all of the relevant facts and circumstances would not, could not, be
disclosed as necessary, or why there would be any necessary resulting conflict
of interest as between the grievor and the employer.
[19] But the most telling factor through this lens of my inquiry is the simple fact that
there is no indication in any of the materials or submissions before me that any
such scenario has yet materialized. The union asserts that the grievor’s
concerns are not academic; this submission is not entirely convincing. The
concerns are clearly speculative and theoretical. And given that the fires which
were investigated all occurred approximately a decade ago, any likelihood that
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circumstances that will actually engage the grievor’s concerns is, at its highest,
fleeting.
[20] I turn briefly to the union’s reliance on “arguable relevance” as the test for
production. The union referred to the decision of arbitrator Surdykowski in Bruce
Power L.P. v. The Society of United Professionals, 2021 CanLII 114134 (ON
LA) in which the learned arbitrator observed (at para. 30):
I also agree that the well-established grievance arbitration
test for production is arguable relevance, and that the test for
production is “looser” than the test for the admissibility of evidence
at the hearing.” But however low the test for pre-hearing
production may be, it is real and more than a mere assertion of
arguable relevance is required in order for the threshold for
production to be met. There must be a clear apparent nexus
between the production requested and the identified issues
actually in dispute, and the production requested cannot constitute
a fishing expedition outside of the “litigation pond” established by
the grievance documentation and the legal positions actually
taken insofar as there is a nexus between those positions and the
issues identified by or flowing form the grievance documentation
…
[21] Further, as the union itself acknowledged, an arbitrator’s power to order
production remains a discretionary one and thus arguable relevance may not
be a guarantee of production. There may still be reasons to limit or deny
production of material which may otherwise be arguably relevant.
[22] But even apart from what may condition the exercise of that discretion, it is
critical to not lose sight of what arguable relevance is measured against.
Although not dealing with a production issue per se, some consideration of
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another award of Arbitrator Surdykowski, Toronto Police Services Board v.
Toronto Police Services Association, 2006 CanLII 50481 (ON LA), is instructive.
[23] That case involved a challenge to the transfers of 14 police officers out of the 52
Division plainclothes unit. Included in that challenge were allegations or claims
for damages for defamation. The impugned statements giving rise to the
defamation claims occurred prior to, contemporaneous with and subsequent to
the transfers, which were the principal target of the grievance. The timing of the
statements became important in the arbitrator’s deliberations. The issues dealt
with in the award, which was the third in a series of preliminary awards, related
to the arbitrator’s authority to entertain the defamation claims and whether
certain portions of the pleadings ought to be struck.
[24] After reviewing awards where arbitrators assumed jurisdiction to adjudicate
claims of alleged employer tortious activities, the arbitrator offered the following
(at paras 28 and 29):
In all of these cases, the alleged tortious conduct in
issue was part of the res gestae or temporal factual
continuum that culminated in the employer action alleged to
be contrary to the collective agreement. As a general matter
post-grievance evidence is not admissible for the purpose of
either justifying or impugning conduct alleged to be a
violation of the collective agreement. But post-grievance
evidence may be admissible if it casts light on the pre-
grievance conduct in issue (e.g. a post grievance admission
of improper animus), or if the collective agreement violation
is proved and the evidence goes to remedy (for purposes of
a claim for aggravated or punitive damages, or if mitigation is
made an issue, for example). At some point the parameters
of any piece of litigation must be fixed. Otherwise, new
claims could be constantly raised as the litigation proceeds.
There is no reason why that point should not be the date that
the grievance (the notional equivalent of a statement of
claim) is delivered. Presumably, the party that has filed a
grievance, believes that i[t] has a collective agreement basis
for doing so, and knows what that basis is. The
determination of the merits of a grievance cannot depend on
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anything that does not exist when the grievance is delivered,
although actions taken after a grievance is delivered can
exacerbate the harm occasioned by a collective agreement
breach.
There is no doubt that an arbitrator has the exclusive
jurisdiction to hear and order a remedy for a claim based in
tort, including defamation, so long as the particular tort claim
is part of the essential factual character of a claim that falls
within the ambit of the particular collective agreement. The
qualifier “essential” means that there must be more than
some connection between the tort claim and a collective
agreement claim. In the courts the requisite connection must
be to a claim that has been or could be made under the
collective agreement. When the issue arises at arbitration,
the connection must be to a claim (i.e. grievance) that is
before the arbitrator, because an arbitrator’s jurisdiction is
circumscribed by the grievance(s) before him as well as by
the collective agreement and applicable legislation.
“Essential” means indispensable, or fundamental or “part and
parcel” of a thing. Accordingly, at arbitration, in order for a
tort claim to fall within the exclusive jurisdiction of the
arbitrator at arbitration, it must be indispensable to or a
fundamental part of a collective agreement claim that has
been made under the particular grievance.
[25] There are some significant parallels both thematically and in terms of aspects of
the factual parameters in the Toronto Police Services case and the instant one.
In both cases there is a clear employment and collective agreement related
event which is the principal subject of the grievance (transfer in one case;
discharge in ours). And, in both cases, it is alleged that the grievors’ reputations
were harmed by employer statements (in our case related to written
representations about inspection reports contained therein). But there is a
difficulty in a clear application of the Toronto Police analysis to our facts. This is
due to the way the union advances the case before me. Essentially, it is striving
to ride twin horses when it asserts that that the documents it seeks produced
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are arguably relevant to “whether the Employer terminated the Grievor in bad
faith and continues to act in bad faith by failing to take reasonable steps to
protect the Grievor’s professional reputation.” I will consider each of these two
prongs separately.
[26] As I have already noted, the union initially (i.e. two counsel and some five years
ago) indicated that, in respect of its “positive allegations”, it was seeking no
remedies flowing from the pleaded facts but was relying on these allegations
only for the purposes of establishing the employer’s improper motives in
effecting the grievor’s termination. That is certainly consistent with the union’s
current assertion that the allegations, if proven, will serve to support its claim of
bad faith. It is not, however, consistent with any claim for damages, certainly to
the extent that such claim is predicated on the assertion that the employer
continues to act in bad faith by failing to take reasonable steps to protect the
grievor’s professional reputation.
[27] This latter claim relates to employer conduct which occurred after the filing of
the grievance. And the connection of that conduct to the grievance before me,
i.e., the grievance that complains of the grievor’s discharge, is less than
apparent, let alone “indispensable to or a fundamental part of” it.
[28] Whatever liability could possibly arise directly (under the collective agreement
or otherwise) out of the employer’s post-grievance conduct is simply not part of
the grievance before me. As Arbitrator Surdykowski’s observed (at para. 35)
regarding allegedly defamatory statements made post-grievance:
…the alleged statements may be separately actionable (not
necessarily under the collective agreement), but they are not
related to the facts material to the transfers in issue. The
allegations do not form part of the essential character of the
collective agreement claim in the grievance before me, and I am
satisfied that I have no jurisdiction over the claim in this item.
[29] Although there was some uncertainty about the precise date of the transfers in
question in that case, the arbitrator essentially took jurisdiction over the
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defamation claims in relation to statements made in the period leading up to the
transfers but not those that followed. This approach is, of course, consistent
with the views the arbitrator earlier expressed regarding the use of the
grievance filing date as the temporal point for fixing the parameters of the
grievance litigation.
[30] To the extent that the union claims that the employer has engaged in post-
termination tortious conduct and seeks remedies by way of damages or cease
and desist orders in respect of and as a result of that alleged conduct, I am
satisfied that constitutes an improper expansion of the discharge grievance
before me. Put somewhat differently, while the production the union seeks
might well be arguably relevant to a proper legal proceeding grounded in claims
of harm occasioned by the employer’s post-termination conduct, that is not
sufficient to warrant production in our proceedings. An order of production
requires “a clear apparent nexus between the production requested and the
identified issues actually in dispute”. Thus, nexus must be expanded to
embrace not only the alleged post-termination tortious conduct, but also the
matter which is at the heart of the collective agreement dispute between the
parties. I am not satisfied that the documents sought are arguably relevant to
the discharge grievance before me.
[31] I have not ignored Arbitrator Surdykowski’s acknowledgement that post-
grievance evidence may be relevant and admissible in exceptional
circumstances, such as where evidence of post-grievance conduct may be
relied upon to shed light on the motive for earlier conduct which is the very
subject matter of the grievance. The union certainly advances such a claim
when it submits that there is a “clear nexus between the request for the reports
and the outstanding questions of whether the Employer effected the Grievor’s
termination in bad faith and has caused damage to his professional reputation.”
I have already concluded that an independent claim that the employer harmed
the grievor in its handling of investigation reports is beyond the scope of this
grievance. The relevant question here is more limited: what light, if any, could
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the employer's post-grievance handling of investigation reports shed on its
motive for terminating the grievor's employment?
[32] In my view, the answer is very little and certainly such an inquiry would be
unlikely to generate sufficient illumination to warrant potentially opening a new
evidentiary front which includes all of the reports and other ancillary documents
related to some 32 different fire investigations. My concern about potentially
dramatically expanding the scope of this litigation arises in a context where we
are in the ninth year following the events which gave rise to the grievance,
where the litigation has trudged ever so slowly toward a final resolution, where
we are currently (many of the major issues now having been resolved) at the
verge of a possible final conclusion, where the union’s theory of liability even in
relation to any harm resulting from the post discharge handling of investigation
reports is largely speculative, only involving inchoate harm.
[33] Having regard to all of the foregoing, the union’s request for production is
denied.
[34] The instant decision is being released simultaneously in English and French.
Neither version is the official version, both should be considered to be equally
authoritative. In view of this, I will remain seized for a period of 30 days (and
thereafter to deal with any issues the parties may raise within those 30 days)
regarding any issues of linguistic compatibility and synchronization as
between the two versions.
Dated at Toronto, Ontario this 5th day of February 2024.
“Bram Herlich”
Bram Herlich, Arbitrator