- Posted by DoylesAr
- On April 23, 2019
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IN THE MATTER OF AN ARBITRATION
HEALTH SCIENCES NORTH
CUPE Local 1623
Grievance of RR
Preliminary Ruling on Request of MC for Standing
For the Employer David Chondon, Counsel
For the Union Wassim Garzouzi, Counsel
For MC John Yach, Counsel
This matter proceeded by Written Submissions received on various dates and completed on April 12, 2019.
 Two grievances have been referred to me for hearing.
 The employer has filed a grievance against the union alleging that the union failed to take all reasonable and necessary precautions to promote and ensure a healthy and safe environment free from intimidation, harassment, discrimination, interference and coercion for its members and executive contrary to a number of statutes and employer and union policies. The employer seeks a number of remedies aimed at preventing the alleged behaviour and ensuring that it does not occur going forward and including “any other remedy appropriate in the circumstances”.
 The union has filed a grievance alleging that the termination of the grievor was without just or reasonable cause. The grievor was terminated, after an investigation which was conducted in response to a complaint by MC and others regarding the grievor’s behaviour and conduct, both in and out of the workplace. The remedies sought in the grievance are, for the most part, typical of those found in termination cases, including of course reinstatement and compensation.
 MC seeks a preliminary ruling that “she is entitled to full party standing… [w]ith full rights to call evidence, cross-examine witnesses and make submissions”. The request relates to both grievances.
 The hearing is scheduled to commence on April 29, 2019 and the issue of the status of MC must be resolved prior to that time. Accordingly, this award is prepared under very tight time constraints.
 Having carefully considered the submissions of the parties, the request for full party standing is denied.
 The facts can be summarized as follows. These facts are based on assertions made in the submissions on this preliminary issue that have yet to be proven.
 Both the grievor and MC were on the local union Executive Board. The grievor was in a more senior position and it is alleged that MC was required to report either to him or to the local union president in fulfilling her union duties.
 It is alleged by MC that in May 2018 she raised the grievor’s behaviour toward her with a National Representative of the union. The allegations are in the nature of sexual assault and sexual harassment both in the workplace and at union functions/events.
 MC alleges that the National Representative provided little or no support to her once her allegations were raised with her and failed to follow up on undertakings to raise MC’s issues as she promised to do.
 Ultimately, in July 2018, a fellow employee and Co-Chair of the Joint Health and Safety Committee initiated a complaint with the employer of a potential occupational health and safely violation consisting of the grievor’s inappropriate conduct toward MC which the complainant alleged he had personally witnessed.
 In response, the employer initiated a formal in investigation into the complaint.
 Following the filing of the complaint, MC alleges that both the National Representative and the local union president pressured her to confine her complaints to the allegations relating to behaviour outside of the workplace. As a result, she states that it was obvious to her that the union’s concern was to silence her and prevent the grievor from losing his job.
 The applicant participated in the investigation process and was interviewed by the investigator. Since September 3, 2018 “due to the stressors associated with the harassment and the ongoing investigation”, MC has been absent from work on sick leave. She alleges that she has been diagnosed with severe depression, anxiety and insomnia.
 On September 14, 2018 MC was advised by the employer that the investigation was complete and that “allegations of misconduct by the [grievor] against you, are substantiated”.
 MC asserts that she has been advised that there is a split among the members of the Local Union Executive Board divided between those who support her and those who support the grievor. She also asserts that the Local was placed under administration which she believes was due to this split and the resulting dysfunction it has caused.
 MC asserts that she has experienced a significant loss of self-esteem, confidence and trust in others, including coworkers. She states that the thought of seeing the grievor causes her to become extremely anxious and upset and the uncertainty surrounding whether the grievor will return to the workplace is constantly on her mind.
 MC asserts that she has lost income as a result of having to take STD benefits, and EI sickness benefits. She has now been required to apply for LTD benefits.
 It is asserted that the actions of the grievor with respect to MC are the basis for the employer’s grievance and the termination of the grievor.
Positions of the Parties
 MC asserts that her future health, reputation and ability to remain employed with the employer are at stake and the union is taking a position contrary to her.
 MC asserts that in view of the remedies sought by the grievor and the fact that her allegations of sexual assault and sexual harassment formed the basis for his termination, it is obvious that her credibility and her reputation will be tested. Accordingly, she asserts that “natural justice dictates that she be afforded the opportunity to present her own evidence and, importantly, to challenge the evidence of other witnesses, particularly [the grievor]”.
 Furthermore, MC asserts that “it must be assumed that the Union will argue that any acts of harassment that occurred at Union functions, and not on HSN premises, cannot be considered by the arbitrator”. She argues that it is her right to ensure that her individual rights under the collective agreement are as vigorously advocated for as those of the grievor. She asserts that it is important that the union has refused to provide her with her own legal counsel, “similar to that enjoyed by [the grievor]” despite the fact that the union is conflicted by advocating the grievor’s interests over those of MC.
 Finally, MC asserts that her loss of income and stability of employment, which occurred as a direct result of the harassment she endured, supports her request for full rights of participation in both grievances to ensure that those interests are protected.
 MC relies on the decision in CUPE Local 101 and London (City), 2014 CarswellOnt 5699 (Lynk) (“City of London”) at para. 10.
 The employer “generally agrees with and adopts the submissions” of MC.
 In addition to City of London, the employer relies on Saskatoon Regional Health Authority v. Service Employee International Union West (Erosa-Lopez Grievance) (“Saskatoon Regional Health Authority”) and Render v. ThyssenKrupp Elevator (Canada) Limited (“Render”).
 The employer asserts that MC’s interests may be directly, personally, and adversely affected by the outcome of this proceeding because a finding that she is not credible in respect of her allegations against the grievor would result in significant reputational harm and would pose a potential risk to her (undefined) employment entitlements with the employer. Furthermore, the employer argues that the grievor’s request for reinstatement “presents a clear risk to [MC’s] ability to return to and participate fully in the workplace”.
 The employer also asserts that the remedies sought in its grievance “may support remedial relief to [MC]” as further supporting her request for full party status.
 The employer argues that a review of MC’s submissions indicates “that there is a risk of [MC] initiating further proceedings” regarding the issues in the grievances and that affording her full party status avoids the risk of multiple proceedings.
 Finally, the employer asserts that its interests and those of MC diverge in two respects. First, the employer asserts that there is some uncertainty regarding the circumstances or reasons for MC’s continued absence from work which, in her submissions, she attributes to stressors associated with the harassment and the ongoing investigation. Second, the employer disputes MC’s assertion that until January 8, 2019 she was not informed by, among others, the employer regarding the actions, if any, taken against the grievor including whether he had been suspended from the workplace pending the outcome of the investigation.
 The employer argues that these disagreements raise a reasonable risk that the employer may take a position that does not enhance MC’s interests.
 The union argues that the request for standing should be denied.
 The union argues the grievance arbitration process is an inherently private process between the union and the employer and that third parties are granted standing only in narrow, exceptional circumstances, none of which apply in this case.
 The union argues that an individual seeking to intervene must have a direct legal interest or stake in the outcome of the proceeding and show that the principles of natural justice would be violated if they did not receive standing. The union observes that the type of categories to which the exception applies are generally job competition grievances or jurisdictional disputes between two unions.
 The union argues that MC does not meet the test for third-party standing because she has no direct legal interest or stake in the outcome of the proceeding. More specifically, the union asserts that because her employment status or legal rights are not engaged in the present case, denial of standing will not result in a breach of natural justice.
 The union observes that the basis for MC’s application is that her employment status or rights would be affected if the grievor was reinstated and that her reputation could be affected if she was not found to be credible in her complaint.
 The union argues that neither of these grounds support MC’s application. She has no legal rights or interest in whether the grievor is reinstated. The union notes that if the grievor is reinstated and MC requires medical accommodation, there are established avenues for her to pursue that. In addition, the union notes that there is no precedent for a harassment complainant to be granted status on the basis that her credibility will be tested. The union argues that there can be no adverse legal consequences with respect to her employment or otherwise if MC is found not to be credible. She has no legal rights at risk in this proceeding.
 The union argues that the decision cited by the employer, Render, should not be followed and does not apply in this proceeding. The union notes that the decision was made pursuant to rule of the Ontario Rules of Civil Procedure which specifically provide for intervenor status. The union argues that the decision cannot be relied on in a labour arbitration context since it arises in a completely different jurisdictional context and it runs contrary to well-established arbitral jurisprudence.
 The union also argues that it is clear from the submissions made by MC that she seeks to dramatically expand the scope of the present proceeding. The union notes that the thrust of her submissions indicates she has complaints about the representation she received from the union which the union observes is within the exclusive jurisdiction of the Ontario Labour Relations Board (“OLRB”).
 The union argues that the decision in City of London on which both MC and the employer rely should not be followed for two reasons. First, it expanded the ground supporting a request to intervene beyond direct legal interest in the proceeding to a significant personal interest. The union asserts that this is contrary to the prevailing jurisprudence. Second, the union notes that the request to intervene in that case (and the cases that have adopted it) came from an individual who was accused of serious misconduct, such as discrimination or harassment, and whose employment status or reputation could be adversely affected by the outcome of the proceeding.
 The union points out that neither MC nor the employer have cited a single labour arbitration case in which that analysis has been applied to permit a harassment complainant to participate in the arbitration proceeding and cites the decision in Bruce Power LP,  OLRD No 170 (OLRB) (“Bruce Power”) in which the OLRB refused to grant standing to a union which relied on City of London to seek standing in the grievance of an employee who was disciplined as the result of complaints made by the members of the union.
 Finally, the union asserts that there is no divergence of interests between the employer and MC relating to the present case. It argues that the interests of MC and the employer with respect to the termination of the grievor’s employment are fully aligned and that in those instances asserted by the employer where their interests are not aligned, these are irrelevant to the present case.
 The union refers to and relies on Laurentian University and Laurentian University Faculty Association, 2017 CanLII 73319 (Burkett)(“Laurentian University”) and the following cases cited in that award, Bloorview School Authority and CUPE, Local 4400 (C-10050), 2015 CarswellOnt 77, 252 L.A.C. (4th) 87 (Knopf) (“Bloorview”); Metropolitan Toronto Apartment Builders’ Assn. of Metropolitan Toronto and Toronto Inc. and LIUNA Local 183 (Residential Framing Agreement), Re 2016 CarswellOnt 1049, 125 CLAS 320 (Surdykowski); Re Toronto Hospital and O.N.A., November 29, 1996, 45 CLAS 467 (P. Picher) as well as Kawartha Pine Ridge District School Board and OSSTF, District 14, 2010 CanLII 47732 (Knopf) (“Kawartha Pine Ridge DSB”) ; Essar Steel Algoma Inc. v. United Steelworkers, Local 2251, 2018 CanLII 126-3580 (Pallard) (“Essar Steel”) and Ontario Public Service Employees Union (Hunt at al) and The Crown in Right of Ontario (Ministry of Attorney General) 2009 CanLII 66598 (ON GSB).
 MC asserts that she has significant legal rights at stake in this proceeding which are to be found in the antidiscrimination provision of the collective agreement (Article 3.01) which incorporates the provisions of the Human Rights Code into the collective agreement. She argues that “[T]he Employer grievance is the precise mechanism through which [her] direct legal interests can and will be addressed, and which avoids the necessity for duplicity of proceedings by the Applicant filing an ‘individual grievance’ as against the Union itself”.
 She also argues that where, as here, “… [i]t is patently clear to the victim that the Union will prefer the interests of the accused, above all else, due to the Union’s admitted desire to protect its own political self interests, it is imperative that the victim be granted the unfettered right to defend her own best interest, which includes the right to hear and test the evidence of all witnesses, including the harasser”.
 MC also argues that if she requires accommodation in the future in returning to work, she would be required to prove discrimination, based on the grievor’s conduct toward her. As I understand her argument, a finding in favour of the grievor in this case may result in finding that the issue is res judicata for all purposes and for that reason alone MC is entitled to standing to advance and protect her legal rights.
 The employer once again asserts that its grievance against the union is sufficiently broad to encompass relief for the applicant including damages for loss of compensation and damages for the alleged discriminatory, careless, or negligent conduct of the union.
 The employer notes that it accepts the general principle that a third party should only be granted standing in narrow, exceptional circumstances and concedes that there is no arbitral precedent where a harassment complainant has been granted such standing. However, the employer submits that the facts in this case are unprecedented and meet the requisite threshold for party standing.
 The employer submits that in the context of a sexual harassment allegation, the complainant has a unique interest in protecting her credibility because the nature of the reputational harm facing her differs from that faced by an individual alleging intimidation by a competing union steward as in the Bruce Power LP.
 The employer argues that the interests of the union and MC are not aligned in this case and that the union cannot represent her interests fully and properly in this proceeding.
 MC seeks “full party standing” at the hearing of these grievances. As I understand her request, she seeks to have the identical standing as the parties to the collective agreement with the right to challenge the evidence of the union, the right to present her own evidence and the right to make final argument on all issues without any limitation, including on matters which do not touch on any of the personal matters she has identified.
 This request, if granted, would be without precedent. There are no cases that were referred to where a harassment complainant has been granted third party standing in a grievance arbitration. Moreover, it goes far beyond the limited right of participation granted in the cases relied on by MC and the employer where a right to intervene was granted to an alleged harasser only in respect of personal matters (reputation, privacy, integrity).
 The case law is settled that grievance arbitration is a private process between the union and the employer. The participation of third parties in that process is exceptional (Laurentian University (and the cases cited therein) and Kawartha Pine Ridge DSB).
 The exceptional circumstances which will support the participation of a third party in that private process have been articulated by ArbitratorBurkett in Laurentian University at p. 5 in the following terms “…a third party may be given intervenor status in circumstances where the third party is effectively unrepresented and it’s legal rights stand to be adversely affected by the arbitral decision or where a failure to grant intervenor status would lead to parallel hearing with a potentially contradictory result (i.e. jurisdictional disputes)”. [emphasis added] It is based on concepts of fairness and natural justice.
 In Bloorview, which was cited by Arbitrator Burkett in Laurentian University Arbitrator Knopf reviewed a non-exhaustive list of factors that should be considered by arbitrators in exercising their discretion in these cases. These include:
- Does the third party have a direct and significant interest at stake?
- Would the third party suffer a definite and/or significant adverse effect if the grievance succeeds?
- What is the nature of the third party’s “interest”? Is it a legal, contractual, commercial or ‘other’ interest?
- Is the third party’s interest grounded in any labour law principles?
- Can the third party defend or protect that interest in any other forum?
- Would the denial of status result in the possibility of a different ruling in another forum?
- Does the third party have something significant to add to the proceeding?
 In this case, MC can arguably claim that the first two factors support her request to intervene. However, in my view, she cannot do so in respect of the other factors.
 She does not have a legal interest or right that would be adversely affected by the outcome of this proceeding. Although she can claim a broad legal interest in a harassment-free workplace, this is a right that all members of the bargaining unit share and is not a right personal to her that would support a request for third party status.
 With respect to the grievor’s grievance, she has no legal rights that will be impacted by the outcome of that grievance. No doubt she strongly prefers that he not be reinstated. But that is a preference and not a legal right that she has. She also makes the point that his reinstatement will have adverse consequences on her and her health. If he is reinstated and if she suffers such adverse consequences, she may very well have legal rights at that will arise at that time that she can assert.
 As noted by the union, most of her submissions in support of her request to intervene are focused on the lack of representation afforded to her by the union. This is a matter that must be pursued at the OLRB and not by way of intervention in a grievance arbitration proceeding. It is not obvious to me that there is any possibility of inconsistent results in view of the legal issues to be determined. The issue before me in the employer grievance is about whether the union violated the collective agreement and employer policies relating to harassment. The issue at the OLRB would be whether the union violated its duty of fair representation not to act in a manner that was arbitrary, discriminatory and in bad faith in the representation of the grievor.
 The determinative factor in this case is whether the interests of MC and the employer align or are divergent. As Arbitrator Ish noted in Saskatoon Regional Health Authority:
29 The case law generally considers whether the interests of the employer are completely co- extensive with that of the third party. If the interests are divergent, or potentially divergent, this will be an important factor in determining that standing should be granted to the third party. It is important to note that it is not necessary for the third party to show that the interests are actually divergent or in conflict; rather, it is sufficient to show that there is a reasonable potential for that to occur.
 In my view, the interests of MC and the employer are perfectly aligned with respect to the relevant issues before me. Both rely on the right to a harassment free work environment broadly defined to include union activities off the work-site. Both identify the union and the grievor as having violated this right. Both assert that, as a result, the termination of the grievor was for just cause. Both assert that the employer’s grievance should be allowed and that of the grievor dismissed. Both are vehemently opposed to the return of the grievor to the workplace
 There is no doubt that MC will be a witness, perhaps the main witness, for the employer. The employer is represented by skilled counsel who will, no doubt, continue to bring forward the evidence and raise every available argument to achieve the results that both the employer and MC wish to achieve. In my view, MCs cannot claim to be “effectively unrepresented” in this proceeding. (see quote from Arbitrator Burkett in Laurentian University at para.54 above).
 In her submissions, MC submitted that her “future health, reputation and ability to remain employed at HSN are at stake. This is a case in which the Union takes a position that [sic] contrary to that of the Applicant and it is not simply a case of general interpretation of the words of the collective agreement”.
 The fact that the interests of the union are not aligned with her interests is obvious. But she does not identify any interests of the employer that are not aligned with her interests in this proceeding.
 In each of the cases relied on by the employer and the union, a finding was made that the interests of the applicant for standing were not aligned with the party to the proceeding that was in the position of the employer in this case.
 For example, in City of London, it was found that that a “…reasonable potential for conflict or divergence between the City and the Supervisor is very much present, particularly in the areas of evidentiary narrative and remedy”. (at para. 13)
 In Saskatoon Regional Health Authority, Arbitrator Ish accepted “[t]hat the employer’s interests and those of Dr. Tellez Zenteno do not completely align…[t]here is more than a reasonable risk that the employer may take a position that does not enhance the interests of Dr. Tellez Zenteno” (at para.30).
 In Render, (which I do not find persuasive essentially for the reasons articulated by the union) Master Graham stated (at para. 50) “Ms. Vieira’s interest in her moral and physical integrity goes beyond the interest in her credibility that would be advanced by the defendant employer, and warrants an order granting her intervener status so that she will also have the benefit of her own counsel’s limited participation in the trial”.
 The two issues relied on by the employer as indicating a possible conflict between its interests and those of MC (see para. 29) are not persuasive since neither issue is relevant to the issues before me.
 I can see no possible conflict of interest between MC and the employer in the litigation of the grievances before me.
 It follows that MC has nothing significant to add to the proceeding as a party that will not and cannot be advanced by the employer. It seems to me that the interests of MC will effectively be represented by the employer.
 In the submissions, both the employer and MC asserted that her right to claim compensation for both monetary and non-monetary damages was a right which supported her claim to full party status in this proceeding. The union opposed that position and cited arbitral authority that indicated that an intervenor in an arbitration proceeding between an employer and a union cannot assert an independent right to such damages (see Essar Steel). No contrary authority was cited by MC or the employer however because intervenor status is not granted in this case, it is not necessary to resolve this issue.
 The employer then argued that its grievance was framed in such a way that that damages could be claimed in respect of the losses suffered by MC. The union once again disputed that position based on the language of the grievance and the provisions of the collective agreement.
 I need not resolve that issue as part of this preliminary award. It seems to me that the position taken by the employer is not a reason to grant MC intervenor status but supports the view that her interests are completely aligned with those of the employer and will be vigorously pursued by the employer. Based on the submissions that have been made, the employer can, and I expect that it will, pursue its right to claim damages on behalf of MC as a remedy in its grievance should the grievance succeed. Whether it is entitled to do so can be fully argued at that time.
 The request of MC for full party status is denied.