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Expanded Case Details

Ontario (Ministry of Community Safety and Correctional Services) (2012), 215 L.A.C. (4th) 336 (ONT GSB)

In Ontario (Ministry of Community Safety and Correctional Services) (2012), 215 L.A.C. (4th) 336 (ONT GSB), a grievance alleging discrimination and harassment was filed nine years after the employee last worked. The employee was disabled by reason of mental illness throughout that nine year period. The union argued that the employee “always had it in her mind to file a grievance,’ had “discussed the subject with almost all doctors [during the nine year period],” and that they “all advised her that she could not handle the stress because of her extreme mental fragility.”

The arbitrator found that shortly after the commencement of her disability, the employee “was sufficiently capable of initiating things to cause her [existing] WSIB claim to be expanded …to include circumstances on which this grievance is based, and to later get the union involved in representing her with respect to that WSIB claim. I am not persuaded that the [employee, having then prepared her chronology and doing] the things described in it, albeit with help from others, was so mentally paralyzed or incapable of considering or initiating anything that during [the year following the commencement of her disability], she could not also have asked someone in the union [to assist her] …

The employee had been treated by nine physicians and one psychologist during the nine year period. The failure to call any of these professionals to testify led the adjudicator to conclude that their testimony would not have assisted the employee:

If the advice her doctors allegedly gave her is part of her explanation for her delay, then the weight to be given to that factor must depend on whether there was an objectively reasonable medical basis for the alleged advice. None of these health professionals testified about the grievor’s capacity to file a grievance during the period when they treated her or the risk to her mental health that her doing so might have caused. Had any of them so testified, employer counsel would have been entitled to cross-examine on the basis for the opinion, explore the physician’s understanding of what was involved in merely initiating a grievance, and challenge the physician to take into account the fact that the grievor did pursue and participate in various other applications and proceedings, including the WSIB proceedings in which she took issue with employer conduct about which she claims she always had it in her mind to grieve. In the absence of any suggestion that any of these health care professionals was beyond the reach of a summons, it is reasonable to infer, as I do, that their testimony would not have supported the position that the union has taken on the grievor’s behalf concerning her mental illness.

In refusing to relieve against the time limits, the adjudicator stated that he was “persuaded that the grievor did not pursue the filing of her grievance with the diligence that could reasonably have been expected of her despite her mental illness.”

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