Alberta v Alberta Union of Provincial Employees

In the matter of a Collective Agreement

between

the Government of the Province of Alberta

(the “Employer”)

and

The Alberta Union of Provincial Employees

(the “Union”)

and

In the matter of Grievance # 859603

before

Arbitrator William D. McFetridge Q.C.

_

_____________________________________________________________________

Representing the Union

Micah Field - Blakely + Dushenski

Stephanie Joyce - Blakely + Dushenski

Representing the Employer

Richard Loomer - Alberta Justice

_

_____________________________________________________________________

PRELIMINARY MATTERS

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. The Employer objects to this matter proceeding on its merits because the Grievance

was filed outside the mandatory time limits agreed to in the Collective Agreement.

The Employer says that I do not have jurisdiction to hear and decide this Grievance.

In the alternative, the Employer argues that the doctrine of laches applies and

therefore the Grievance should be dismissed.

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3

. A hearing into the preliminary matter was conducted via Zoom on March 1 - 4, 2022.

. Due to the sensitive nature of some of the allegations outlined herein, the parties

asked that the name of the Grievor as well as the names of some other persons

referred to herein not be disclosed. The Grievor will be referred to as “the Grievor”

throughout, certain other persons involved in this matter will be referred to by their

position, role or their initials.

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4

. The parties provided an Agreed Book of Exhibits which included 16 Exhibits. An

additional exhibit was added during the hearing.

FACT SUMMARY

5

. The Grievor is 49 years of age and grew up in Edmonton. Her mother was a

residential school survivor who had drug and alcohol problems. The Grievor, her

sister and her mother were abused by their step-father. She left home at age 15 and

had a child at 17. She completed her high school while a single parent when she

was in her early 20s.

6

. The Grievor was hired as a temporary wage employee by Correctional Services in

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997. Her temporary employment ended in 2000. She was re-hired in 2008 and

worked at the Edmonton Remand Centre (ERC). She began as a trainee CPO1, and

was later promoted to CPO11. She testified that this was the best job she ever had,

she was able to support herself and her daughter. In 2011 she purchased a home

where she still lives.

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8

. On July 9, 2015, her employment with the Government of Alberta was terminated for

cause. The termination was the subject of Grievance #857916. It was heard by a

panel chaired by Arbitrator Jolliffe on January 17, 18, 19 and 25 and May 1, 2, and

8

, 2017. The termination was upheld. The Arbitration Award (hereafter the Jolliffe

Award) was issued on August 18, 2017 and is included as Exhibit 12 in the Book of

Agreed Exhibits.

. The grievance that is the subject of this hearing (Grievance #859603 hereinafter “the

Grievance”), was filed July 6, 2016 approximately one year after the Grievor’s

employment was terminated and approximately six months before the matter was

heard at arbitration. The Grievance alleges that on or about May 28, 2011 the

Grievor was sexually assaulted at her home by a co-worker. The Grievance alleges

that when she brought this to the attention of the Employer, she was told to “put it in

a book, put it on the shelf and forget about it”. The Grievance also alleges that she

was made to work with her attacker and that the Employer’s conduct was a

violation/misapplication/misinterpretation of the Collective Agreement in particular

but not limited to Articles 5 - 50.

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. The redress sought is as follows: A cleared file as related to this matter; A

declaration that the employer has violated/misapplied/misinterpreted the Collective

Agreement and the Employer admits to covering this up; and that the Employer

investigates my attacker; and the the Employer investigates the actions/statements

of (the Director); and To otherwise be made whole, and any other remedy deemed

appropriate in the circumstances.

The Sexual Assault

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0.The particulars of the sexual assault are set out in the police report prepared by the

Edmonton Police Service (EPS) following an interview with the Grievor at her home

on June 01, 2011 (Exhibit 6 in the Agreed Book of Exhibits). The report was

prepared from notes taken by the Detective during the interview. The Grievor

testified that the report is accurate.

1.For purposes of this Grievance it is not necessary to go over the particulars of the

sexual assault. A brief summary is as follows: The Grievor and her assailant were

co-workers and he was married. They had an active sexual relationship for over a

year. It ended in July 2010. On May 27, 2011, she was out drinking with a friend and

became “somewhat intoxicated”. Over the course of the evening she exchanged text

messages with her former sexual partner. The messages became increasingly

sexual and ultimately she provided him with directions to her home with the

expectation that he would go there and they would have sex. He arrived shortly after

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:30 am on Saturday, May 28, 2011 and they engaged in consensual sex as

planned. He then committed a sexual act to which she had not consented. He

refused to stop when she protested. He pinned back her arms and forced himself on

her. When he was finished he cleaned himself off and left. About half an hour later

she texted him. The text message does not reveal the Grievor’s distress or support

her claim that she was raped. The text message says “Thanks for the fuck, better

than your friend”. She did not receive a reply. Five hours later she texted him again;

she asked him if he had been at her place as she saw that they had been texting

and that she had given him her address. About two hours later he replied, “nope”.

She immediately responded “good” and “I was plastered. That can never happen

again” to which he replied “Nope.” She explained to the police that she knew he’d

been there but wanted to know what he’d say if she asked him.

1

2.The fact that the Grievor’s emails do not reveal her distress and are not consistent

with her having been raped is not mentioned here to cast doubt or question her

claim that she was raped but may be relevant to an understanding of why she did

not want to proceed with criminal charges and whether she told the Employer that

she did not want the matter investigated. The Employer did not see the Police report

until years later and at all material times accepted that the Grievor had been raped in

her home.

3.In the afternoon of Saturday, May 28, 2011, her ex-brother-in law came by her home

and found her crying and in distress. He arranged for her to go with a friend to the

Sturgeon Hospital in St. Albert to be examined by a sexual assault nurse. They

arrived at about 6:00 pm. They were directed to wait in a private room. A female

RCMP Officer came to speak with her however the Grievor would not talk to her as

she did not feel that she was ready. The Grievor and her friend were at the Hospital

for several hours but returned home without being examined by a sexual assault

nurse.

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4.She saw her own family doctor at 5:00 pm on Monday, May 31, 2011.

5.She later attempted to contact the RCMP Officer but was advised that because the

assault occurred in the City of Edmonton, it would have to be reported to the

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Edmonton Police Service (EPS). She did so later that day and a male and a female

EPS Detective came to her residence and interviewed her on Tuesday, June 1,

2

011.

1

6.Near the end of the interview, the EPS Detective asked the Grievor what she

thought would be the best course of action. She was informed that these types of

actions are victim driven. She indicated that she wasn’t sure and asked for time to

think about it. She told the Detective that she had disclosed the assault to three

friends and provided him with their names and phone numbers.

1

7.She told the EPS Detectives that she had not slept in her bed since the assault and

they took away her sheets and the towel that her assailant had used. It was agreed

that they would speak again in a few days.

8.The EPS contacted the Sturgeon Hospital and confirmed that the Grievor had been

there on May 28, 2011. According to the Program Director for Emergency and

Outpatient Services, the Grievor had not been examined by a sexual assault nurse

due to “a failure in communications”. There was no explanation as what was meant

by that phrase.

1

9.The Grievor was contacted again by the EPS on June 6, 2011. Their discussion

lasted 50 minutes. The EPS Detective asked the Grievor whether she wanted them

to proceed with the investigation past the reporting stage. The Grievor asked what

would happen if the EPS spoke to the co-worker who had assaulted her, if there

were sufficient grounds to charge him and what the court process would be like. She

was advised that the next step would normally be for her to consent to a DVD

recorded interview and that the Detectives would then speak to witnesses including

the suspect. She was told that it was up to her whether the police would proceed to

the next stage. She was advised that if charges were laid and the suspect plead not

guilty, she would likely have to give evidence in court. She indicated that she would

think about it but at this point, did not wish to proceed any further. The Detective

suggested that she avoid contact with her assailant to the extent possible and if he

contacted her, she should advise him that a police report had been filed and give

him the Detective’s name and the case file number.

2

0.The Detective called her again the next day, June 7, 2011. The Grievor advised him

that she had decided not to pursue the matter further and was dealing with this

issue, as well as past issues, with a psychotherapist. He asked her about the sheets

and the towel and she said she didn’t want them and asked him to dispose of them.

1.The Grievor was off work on general illness leave for two shift rotations (about 18

days) . During this time she stayed with her sister who lives out of the city. On her

return to work she discussed the assault with NT, a female supervisor (CPO 111)

and personal friend who was also a union steward. NT discussed the Grievor’s

circumstances with another supervisor and arranged for the Grievor to meet with the

Centre Director of the ERC (hereinafter the Director). The Director is the most senior

manager at the ERC with overall responsibility for the operation of the institution. At

the time, there were between 300 - 400 staff employed at the ERC.

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2.The Grievor met with the Director sometime between June 18 and July 4, 2011. She

was accompanied by SH, a friend and union steward. No one took notes. There is

some conflict in the evidence concerning what was said during the meeting. SH, still

works at the ERC but was not called to give evidence. The Employer argued that an

adverse inference should be drawn from the Union’s failure to call SH to give

evidence. SH testified under oath at the hearing into the Grievor’s termination and

was questioned about the meeting. Her evidence was summarized by Arbitrator

Jolliffe in his August 18, 2017 decision.

3.Arbitrator Jolliffe summarized her evidence at p 98 of his award:

Coworker SH, currently holds a CPO111 position at the ERC and at one time was

a union steward. She acknowledged being a personal friend of the (Grievor)

having known her for some 20 years. It was in her shop steward capacity that she

attended (the Grievor’s) meeting with (the Director) in 2011. She took no notes. It

may have been the second meeting between them, recalling that they discussed

the grievor having been sexually assaulted by a more senior coworker who held an

in-scope supervisory position with (the Grievor) choosing not to file any formal

complaint. She said that she did not recall (the Grievor) indicating that she wanted

an internal investigation, or even that (the Director) should discuss the situation

with the perpetrator. … She recalled (the Director) offering mediation services with

which the grievor was plainly not comfortable, not wanting to have any contact

whatsoever with this individual. They raised the issue of not having her ever

assigned to work with him. With (the Grievor) not wanting to proceed on any formal

basis, she recalled (the Director) suggesting that she would have to “put it in a

book and set it on the shelf”, which she took to be a very insensitive remark, even

an “atrocious” one. By her recollection, (the Grievor) seemed upset and frustrated

at the insensitivity and (the Director) not seeming to do anything “to help her out”

including the insensitivity of offering mediation. …

2

4.While I appreciate that the above is hear-say and not a transcript of the testimony

given by SH at the hearing into the Grievor’s termination, it has probative value. It is

Arbitrator Jolliffe’s summary of the evidence of a material witness that was given

under oath. What was said at this meeting is important to the Union’s case and SH

was not called as a witness. Further, the decision of Arbitrator Jolliffe was not simply

included as an authority, it was included by the parties in the Agreed Book of

Exhibits and is an exhibit in these proceedings. The above quoted summary

provides substance to the adverse inference to be drawn from the Union’s failure to

call SH as a witness.

2

5.The Director testified that after the Grievor disclosed that she had been sexually

assaulted at her home by a supervisor, they discussed how this was affecting her

mentally. He asked if she was aware of the services available through Employer

sponsored programs and encouraged her to seek counselling. The Director asked if

she had reported this to the police and whether she would be bringing criminal

charges against her assailant. She advised him that she had reported the incident to

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the police but was not going to bring charges and had told them not to interview her

assailant.

2

6.According to the Director, she indicated that she wanted to continue in her job at the

ERC and did not want her co-workers to know about the sexual assault. The Director

testified that they discussed whether the Employer should conduct an investigation

and she indicated that she did not want the Employer to do so.

7.According to the Director, the Grievor expressed concern that if she filed criminal

charges or made a formal complaint to the Employer, it would be difficult for her to

continue working at the ERC. Although it appears that she had many friends among

the staff at the ERC, she feared that if it became known that she had reported her

assailant, she might be labelled a “rat”, treated badly by co-workers even to the

extent that they might abandon her in an emergency. The Director indicated that the

Grievor was emotionally distraught and that he understood the basis for her

concerns.

2

3

8.The Director testified that all staff, including the Grievor, are aware of Standing

Operating Procedure 2.20.04 (Exhibit 13) which stipulates that members who are

questioned by the police concerning alleged criminal activity or are charged with a

criminal offence, are required to report it to the Centre Director. He said that if such a

report was received, the Employer would likely conduct its own investigation. An

investigation by the Employer would involve interviews with her assailant and

possibly other staff at the ERC.

9.The Director understood that the Grievor wanted the sexual assault kept confidential

and agreed to abide by her request. He did not order an investigation, did not speak

to the police and did not speak to her assailant. He did not share the information

about the sexual assault with anyone who did not need to know. It was his evidence

that the Grievor and her Union Steward knew that an investigation into the assault

by either the Police or the Employer, would involve questioning her assailant and

the Grievor did not want that.

0.To accommodate the Grievor’s desire to continue in her job at the ERC but not work

with her assailant, the Director offered to arrange for them to be scheduled on

different shifts. He testified that both the Grievor and her Union Steward agreed to

this proposal. The Director testified that there was no discussion of transferring the

Grievor or her assailant to another institution. He explained that the Grievor wanted

to stay in her job at ERC and her assailant could not be transferred without good

reason which would likely require a full investigation of the Grievor’s allegations.

1.The Director testified that there was no thought that this would become a grievance.

The discussion was about the best way to proceed and he believed that he was

doing what the Grievor and Union wanted. He proposed that the Grievor and her

assailant be scheduled on different shifts and believed the Grievor and her Union

Steward saw this as an acceptable solution. He also told the Grievor that if she

wanted to continue in her job at the ERC but not have this matter investigated, she

would have to put the incident behind her. He provided an analogy of a couple who

Page 6 of 51

decide to make a go of their marriage despite one of them having cheated. He said

that the only way that it could work is if they put the cheating aside and forgot about

it. He said he advised the Grievor that if she did not want to have this matter

investigated but continue in her job, she would have to do the same. He admitted

saying “she could put it on a piece of paper, put the piece of paper in a book and put

the book on the self.”

3

2.The Director denied that he told the Grievor that she must forget about the incident

but did advise her that if she did not want to proceed with an investigation and

continue to work in the building, she would have to put it aside; compartmentalize it

so that it would not interfere with her ability to work at the ERC. The Director

acknowledged that he had offered to mediate but explained that his proposal for

mediation was not to mediate the sexual assault but to get the Grievor and her

assailant together to permit them both to continue working at the ERC.

3.The Grievor’s testimony at the hearing reveals a different recollection of the meeting.

She indicated that the Police had told her that because her assailant was her

supervisor at the institution, she had to talk to the Director. She confirmed that she

told the Director that she had been raped and that she did not intend to lay criminal

charges. She testified that she told him that she wanted to continue in her job at the

ERC but did not want to work with her assailant. In her testimony at this hearing, she

denied that she told him that the matter must be kept confidential or that she did not

want the Employer to conduct an investigation. However, she also testified that she

had voiced her concern that if it became known that she had reported a co-worker,

there might be serious consequences to her. When asked about the consequences

of an investigation she testified; “I would be ostracized, crazy shit happens, rats on

your locker, tires slashed, no one talks to you, leave you alone with inmates, might

as well get another job.”

3

4.It was her evidence that the Director only gave her two choices; mediation which

would require her to meet face to face with her assailant or she could put it in a

book, put the book on a shelf and forget about it. She understood that she had to

either face her assailant or forget about it.

5.There were a series of emails between the Grievor and the Director shortly after

their meeting. In an email on July 4, 2011, the Grievor requested a brief meeting to

convey her “decision”. The Director indicated that she confirmed that she would not

proceed with either a police or an in-house investigation. She wanted to stay in her

job as a CO11 at ERC but on a different shift than her assailant. This is consistent

with the Director’s evidence and with what was done over the next year or more.

3

6.The Grievor next contacted the Director by email about eight months later. At 8:16

a.m. on Wednesday, February 22, 2012 she informed him that, for the second time,

her assailant had been assigned to work as the CO111 on her shift. She told the

Director that she found it traumatizing. In the email she also reported that she had

further evidence that her assailant had used a false name at a swingers bar and that

she had confirmed this with female inmates and another woman who worked as a

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bartender at the swingers bar. She indicated that female inmates knew of his

reputation and that it was consistent with her experience with him. The email stated:

I wanted to email in regards to two issues about my day 6 at work. First off let me

start by saying how traumatizing it was to have Mr. (her assailant) as my CO111.

This is the second time this has happened to me. I don’t think I need to say

anymore about how this effected me & continues too.

Second off these female inmates are well aware of this CO111 and his alter ego

(use of an alias). They have told many staff & (sic) and many inmates. I am well

aware of this and the whole story and I know it to be true due to what has

transpired with me. This whole “( she names her assailant’s alias)” story is very

well known up here and very well known to me.

3

7.The Director responded at 9:51 a.m. as follows:

Apparently Mr. (her assailant) worked a shift exchange. The confidential

information you provided me with respect to your relationship with Mr. (assailant)

has remained that, and therefore the A-shift managers would not be aware of any

issues.

As for the (“alias”) story, it has been addressed on an official level.

That said we should get together and discuss these concerns regarding any new

directions that you feel may be necessary.

I am in a meeting today but give me a call tomorrow.

Thanks

3

8.On Friday, February 24, 2012, they met at about 9:30 a.m.. The Grievor attended

with JH, a union steward. The Director testified that until he received her email on

February 22, 2011, he understood that scheduling them on different shifts was

working reasonably well as there had been no problems over the previous eight

months. He agreed with the Grievor that it was unfortunate that she and her

assailant had been scheduled on the same shift but explained that due to the

Grievor’s request that the incident be kept confidential, he had not told the A-shift

manager why the Grievor and her assailant were not to work the same shift. He said

that operational managers were not aware of the reasons for keeping them apart

and therefore “didn’t put the brakes on" when he changed shifts. The Director’s

recollection was that the meeting focussed on how best to respond to her concern

about being scheduled to work with her assailant. He testified that although the

Grievor appeared to be upset, “there was no confrontation, she did not ask us to do

something and we refused to do it.” According to the Director, there was no thought

that this would become a grievance. When asked why he did not have the matter

investigated, he replied; “She (the Grievor) wanted us to keep it confidential. She

wanted to continue working at ERC.”

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9. The Grievor’s testimony at the hearing concerning the February 24, 2012 meeting

was different from that of the Director. She said the purpose of the meeting was to

find out why her assailant had been scheduled to work the same shift as her. She

also wanted to advise the Director that she had obtained further evidence that her

assailant used a false name at the swingers bar and there were now two women (an

inmate and the bartender at the swingers bar) who could confirm that. It was her

evidence that when she requested an investigation his response was “we don’t want

this to go next door” which she, understood to mean that he didn’t want it to go to his

superiors who work next door in the Brownlee Building. She concluded that the

Director was not willing to investigate her assailant and gave her just two choices; to

mediate the dispute which would require her to meet face to face with her assailant

or put the incident on the shelf and forget about it.

4

0.The Union Steward, JH, attended the February 24, 2012 meeting with the Grievor.

His brief notes were entered as Exhibit 17. He testified that he first became aware

that the Grievor had been raped just before the meeting. He confirmed that “it was

most certainly not common knowledge around the jail”. It was his evidence that in

the meeting they discussed why the Grievor’s assailant had been scheduled to work

on the same shift as the Grievor and he recalled that the Director said he’d spoken

to the shift manager. The Grievor indicated that her assailant was still working on her

shift and the Director agreed to look into it to ensure that she would not be assigned

to work with him in future. The Union Steward asked the Director when he’d get

back to them and the Director agreed do so within three weeks. The Union Steward

testified that when the Director suggested that the matter be mediated, the Grievor

became very upset because she did not want to have any contact with her assailant

and understood that mediation would involve a face to face meeting. His notes show

that following the Director’s offer to mediate, the Grievor stated “he should be moved

and investigated.” According to the Union Steward, the Grievor was crying

uncontrollably both during and after the meeting. He also testified that the Director

never did get back to him.

4

1.According to the Union Steward (JH), the Grievor was frustrated and upset but there

was no discussion about filing a grievance either during or after the meeting. This is

consistent with the evidence of the Director. JH agreed that there was no

confrontation, the Director agreed to speak to the shift manager to ensure she did

not have to work on the same shift as her assailant. At that time, the Director was

moving to the position of Director at the Fort Saskatchewan Correctional Centre but

told the Grievor that he had informed his replacement at the ERC of her

circumstance and that if a problem arose after he left, she could still contact him.

4

2.The Director pointed out that the Grievor’s allegation that her assailant had used an

alias, at the Swinger’s Bar (and that this was well known to female inmates at the

ERC) was looked into at an official level as he had advised the Grievor in his email

but testified that when they looked into it there was no basis for the Employer to take

action.

3.The Grievor next contacted the Director by email on May 16, 2012. Her email states

that her assailant had contacted her twice again after she told him to leave her

Page 9 of 51

alone. She stated “I know you said to put it in the book and put its on the shelf, but

this is impossible for me to forget as he still works up on the 5th (the floor where she

works) at times …and he text (sic) twice asking to meet him. The Director responded

3

6 minutes later advising her as follows:

If I recall, you indicated that you had reported the incident to the police at the

time, and although they did not confront him, they kept a file. If he has

contacted you again after you told him you were not interested, I

might suggest

update on the situation, as the

criminal.

you go back to them and provide them with the

behaviour you describe could be

Regarding the work factor, I had discussed the issue with (his successor) when I

left, so I will follow up with him and one of us will get back to you.

4

4. Her response was “Ok thanks”. There was no evidence concerning whether she

reported this to the police as he suggested or if anyone got back to her.

5.The Director moved to the Fort Saskatchewan Correctional Centre in late February

2

012, and in 2014 was promoted to Executive Director, Adult Centre Operations

Branch. He retired in April, 2020.

4

6. In October of 2013, the Grievor and another Correctional Officer were injured in an

altercation with a serving inmate. The Grievor suffered a head injury and was off

work for approximately 12 months. When she returned to work in November or

December 2014 the ERC was in a new and larger building.

7.About six months later in June of 2015, the Grievor filed a respectful workplace

complaint against another supervisor (a CPO 111). She complained that he was

treating her unfairly because she had rebuffed his sexual advances. She claimed

that he had started harassing her and her son-in-law (also an employee at ERC)

when she began a personal relationship with another CPO at the ERC. She

complained that he had refused her requests to work overtime, referred to her as a

bitch in conversations with her co-workers and was out to get her. The Grievor’s

respectful workplace complaint was reviewed by the Employer however no action

was taken.

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8.About a month later on July 9, 2015, the Grievor’s employment was terminated for

cause. Her dismissal was as a result of misconduct that occurred in April, 2015. The

Grievor secretly copied an internal ERC security video left open on a normally

secured computer terminal. The video showed an inmate physically assaulting a

correctional officer. She forwarded the video to several correctional officers with the

expectation that the video would passed on to the media. A few days later the

security video was shown on the evening news on the local CTV outlet. The Grievor

was aware that the safety of CPO’s at the ERC had become an issue between the

Union and the Employer and the video was intended to generate public support for

the Union’s position.

Page 10 of 51

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9.This was regarded by the Employer as a serious breach of security and throughout

the Employer’s investigation into the matter the Grievor denied any involvement.

She maintained her false version of the events over a period of several months and

pressured a junior co-worker to do likewise. Later in the Employer’s investigation

other internal CCTV footage was discovered that showed the Grievor and a co-

worker viewing the security video and the Grievor using her cell phone to copy it.

She continued to deny responsibility even after the incriminating CCTV footage was

discovered and after her junior co-worker admitted the she had copied the video and

instructed him not to disclose what she had done. The decision to terminate her

employment was based on her misconduct in copying and forwarding the security

video in violation of her statutory obligation as a Correctional Peace Officer and her

dishonesty during the investigation in attempting to cover up her actions and for

coercing her junior co-worker to corroborate her dishonesty.

5

0.Two months after the termination of her employment but several months before her

grievance was heard, she confessed to having recorded the video on her cell phone

and having forwarded it to a co-worker with the expectation it would be made

available to the media. She explained that she had done this to please her boyfriend

as he was involved in the campaign to improve working conditions for CPOs at the

ERC. Her confession was offered by the Union as a mitigating factor with respect to

the termination of her employment. The arbitration board was not persuaded that her

admission, coming as late as it did, was enough to restore the essential trust

necessary for a viable employment relationship. Her termination was upheld.

5

1.On July 9, 2016, approximately 12 months after her employment was terminated and

about 6 months before her grievance concerning the termination of her employment

went before by the arbitration board, the Grievor filed this Grievance.

2.In March of 2017, the Grievor made an application to the Alberta Victims of Crime

Financial Benefits Program. She was initially turned down because her application

was outside the 2 year time limit. She sought help from the Sexual Assault Centre of

Edmonton. Dr. Karen Dushinski, who was then the Director of Client Services for the

Sexual Assault Centre, wrote a letter in support of the Grievor’s appeal. The Appeal

was ultimately successful and the Grievor received compensation from the Victims

of Crime Financial Benefits Program for the rape that had occurred on March 28,

2

011.

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3.Dr. Dushinski is a registered Psychologist and has a Phd in Counselling Psychology.

She was with the Edmonton Sexual Assault Centre from 2006 until 2020. She is now

in private practice. Dr. Dushinski testified on behalf of the Union as an expert in

sexual assault trauma. The Employer did not object to Dr. Dushinski being qualified

as an expert in sexual assault trauma. Dr. Dushinski prepared a written report in

which she responded to a number of specific questions posed by the Union. Her

report is Exhibits 16 in the Agreed Book of Exhibits.

4.Dr. Dushinski first met the Grievor in April, 2017 when the Grievor came to the

Edmonton Sexual Assault Centre for assistance in preparing her appeal after her

claim for compensation from the Victims of Crime Compensation Program was

Page 11 of 51

refused. Dr. Dushinski helped her with the appeal and later provided 38 individual

counselling sessions. According to Dr. Dushinski, the Grievor demonstrated severe

post-traumatic responses including hyper vigilance (for example she would not allow

anyone to walk behind her in the hallway of the Sexual Assault Centre, booked her

appointments early in the day so that the waiting room would have fewer clients,

removed the doors from the closets in her home and installed a security system) and

intense flashbacks that resulted in her appearing to be stuck in the memory of her

assault, (she froze, started crying and shaking and on one occasion appeared to

have become unaware of her surrounding). The Grievor reported significant sleep

disturbances, nightmares and flashbacks that worsened with the stress of her

involvement in various legal processes. Dr. Dushinski testified that the Grievor told

her that she became involved in a series of unhealthy relationships that had further

detrimental impact on her mental health, withdrew from family and friends, and at

one point was hospitalized as a result of a suicide attempt.

5

5.When Dr. Dushinski was asked if the Grievor’s delay in prosecuting her grievance

was because of her trauma, Dr. Dushinski indicated that the delay was because of

the trauma but also because she perceived that there was a lack of safety in the

ERC work environment. According to Dr. Dushinski, working in a correctional facility

has inherent risks of violence and if a sexual assault victim did not feel safe with

colleagues, it would be extremely difficult for them to fulfill their duties in this

environment. It was Dr. Dushinski’s opinion that, for a number of reasons, the

Grievor did not feel that it was safe to begin the formal grievance procedure while

she was employed at the ERC and as a result she did not initiate the formal

grievance procedure until after the termination of her employment.

5

6.Dr. Dushinski also testified that sexual assault survivors sometime can’t accurately

recall aspects of the traumatic event. Their memory of trauma may be unclear or

incomplete. She testified that a trauma victims’ memory can be like a strobe light;

the memories are not integrated properly and may just come as flashes triggered by

a variety of stimulus. Dr. Dushinski also indicated that trauma victims sometimes

experience cognitive distortions where their thoughts cause them to perceive reality

inaccurately. Their recollection of the traumatic event may change over time; what

sexual assault survivors recall of the events may change and can be influenced by

choices made around the time of the assault. Their recollection may be influenced

by the support system they have, their family, work group, and society at large. She

testified that a survivor’s ability to function may be affected by their support system;

the response of their support system may affect their ability to function in the future

and if a sexual assault victim does not feel safe, it is difficult for them to heal.

5

7.According to Dr. Dushinski, victims of trauma do not all react in the same way.

Persons such as the Grievor, who had experienced multiple trauma in the past, may

find it more difficult to cope with a sexual assault. Dr. Dushinski said that there is no

set period of time within which a victim of sexual assault can be expected to heal, it

depends on many things including whether they get help, the type of help they get

and whether the help available is actually helpful. Recovery can be impeded by the

Page 12 of 51

victim’s perception of safety, the victim’s previous history and how previous trauma

was dealt with. Sobriety is also a factor, sobriety is necessary to the healing process.

5

8.Although the Dr, Dushinski is well qualified and well meaning her evidence must be

assessed in the context of her relationship with the Grievor. Dr. Dushinski didn’t

meet the Grievor until 2017, six years after the events that form the subject of this

Grievance. She had no contemporaneous knowledge of the Grievor’s mental state at

times most relevant to this case. Dr. Dushinski’s relationship with the Grievor began

when she assisted her in an appeal of a decision of the Alberta Victims of Crime

Financial Benefits Program. She then took on the Grievor as a patient and provided

her with 38 counselling sessions. She has extensive experience as an advocate on

behalf of victims of sexual assault and testified that victims of sexual assault

generally don’t get the support they need. She admitted that in her report and in her

testimony, she was advocating on behalf of the Grievor.

5

6

9.Dr, Dushinski also indicated that her opinion was based on the usual reactions of

sexual assault victims with the caveat that not all sexual assault victims respond in

the same way. She further qualified her opinion on the basis that she only had the

information provided to her by the Grievor and no way of verifying whether it was

accurate. It was her opinion that sexual assault victims may not accurately recall

aspects of the trauma, may have a distorted recollection regarding the cause of the

trauma and may have distorted perceptions around issues of safety and trust.

0.Dr, Dushinki’s response to questions asked by the Union was based, in part, on

facts not in evidence. She was asked about the psychological impact of a sexual

assault victim working in proximity to their assailant. The Expert’s response

assumed that when the Director was informed of the sexual assault, there was no

systemic response and he required her to work with her assailant. That is not the

evidence. The Director was informed of the assault when the Grievor returned from

1

8 days of general illness leave, he was sympathetic to her circumstances, he

enquired as to her mental health, encouraged her to seek counselling and attempted

to accommodate her requests. He agreed not to proceed with an investigation, he

agreed to keep the assault confidential and he agreed to arrange for her to be

scheduled on a different shift than her assailant. According to the evidence, the

Employer was not unresponsive. Dr. Dushinski’s opinion assumes that the Grievor

was required to work with her assailant. That is not the evidence. The Employer

scheduled her on different shifts from her assailant and at the same time

accommodated her desire to avoid an investigation into her assault, avoid anyone

interrogating her assailant. The Employer honoured her request to keep the assault

confidential from her co-workers at the ERC. Dr. Dushinski was not advised that the

Employer’s response to the reported sexual assault was immediate and tailored

specifically to the Grievor’s expressed preferences.

6

1.This Grievance was filed on July 6, 2016, the parties attempted to schedule level two

hearings three times (May 18, 2018; December 7, 2018; January 31, 2019) but each

time the hearings were postponed at the Union’s request. The parties ultimately

agreed to dispense with the level two hearing and proceed directly to arbitration. The

Page 13 of 51

arbitration was initially scheduled November 17, 18 and 19, 2021 but was

rescheduled at the Union’s request. A hearing into the Employer’s preliminary

objection to the this Grievance proceeding was conducted via Zoom, March 1 - 4,

2

022.

EMPLOYER ARGUMENT

6

2.The Employer’s preliminary objection is based on Article 29.03(a) of the Master

Collective Agreement states:

An Employee wishing to pursue a grievance, shall submit it in writing to the

Designated Officer at Level 1 within fourteen (14) days of the date upon which the

subject of the grievance occurred or the time when the Employee first became

aware of the subject of the grievance. (Emphasis added)

3.According to the Employer timelines and procedures in the Collective Agreement are

mandatory and can only be extended by written agreement. Here there was no

written agreement extending the time for filing this Grievance. Failure to pursue a

grievance within the mandatory time limits results in abandonment of the grievance:

2

9.07 Procedures and Time Limits

a) Time limits and procedures contained in this grievance procedure are

(

mandatory. Failure to pursue a grievance within the prescribed time limits and in

accordance with the prescribed procedures shall result in

abandonment of the grievance. Failure to reply to a grievance in a timely

fashion shall advance the grievance to the next level. Grievances so

advanced

the last allowable

shall be subject to time limits as if a reply had been made on

day of the preceding level of procedure.

(b) Time limits in this Article may be extended by written agreement between

the Employing Department or the Employer and the Union.(Emphasis added)

6

4.The Employer pointed out that arbitrators do not have the authority to add to, alter,

modify or amend the terms of the Collective Agreement:

Article 29.05 Power of Arbitration Boards

…

(b)

Arbitration Boards, single arbitrators and mediator -arbitrators shall not

add to, alter, modify or amend any parts of the terms of the Collective

Agreement by their decision, nor make and decision inconsistent with it nor to

deal with any other matter that is not a proper matter for grievance under

the

Collective Agreement. (Emphasis added)

6

5.The Employer acknowledged that since November 2018, the parties’ Collective

Agreement includes language that permits an arbitrator to extend time limits.

However, this language is not in either the 2011 or 2014 Collective Agreements. The

2

011 Collective Agreement was in effect when the subject of the Grievance occurred

Page 14 of 51

and the 2014 Collective Agreement was in effect when this Grievance was filed and

when the Grievor’s employment was terminated in 2015.

6

6.The Employer further pointed out that in 2011, when the subject of the Grievance

occurred and in 2016, when the Grievance was filed, the Public Service Employee

Relations Act stipulated that Sections 134 to 146 of the Labour Relations Code

applies to arbitrations under that Act. Section 142(1) of the Labour Relations Code

stipulated that, subject to s. (2) no arbitrator, arbitration board or other body shall by

its award alter, amend, or change the terms of a collective agreement.

7.According to the Employer, I have no statutory authority to grant relief from

mandatory time limits in a collective agreement. The legislative amendment to the

Labour Relations Code giving arbitrators the powers to relieve against mandatory

time limits was not in effect in 2011 when the subject of the Grievance occurred nor

in 2016 when the the Grievance was filed. Further, s.142(3) of the Labour Relations

Code, which permitted arbitrators to relieve against mandatory time limits found in

collective agreements, was only in effect from 2017 until it was repealed on July 29,

2

020.

6

8.Counsel referred Article 29.05 of the Labour Relations Code which expressly

prohibits an arbitrator from rendering a decision which alters, modifies, or amends

any part of the terms of a Collective Agreement.

9.The Employer acknowledged that for a period of time between 2017 and 2020,

section 142(3) of the Labour Relations Code did allow arbitrators to relieve against

mandatory time limits but pointed out that the Legislature of Alberta removed this

power in 2020. An arbitrator’s power to relieve against mandatory time limits was not

in force in 2011 when the subject of the grievance arose, it was not it in force in July

2

016 when this Grievance was filed and it not is not in force now. The current

Alberta Labour Relations Code in section 142(1) states that an arbitrator is not

permitted by its award to alter, amend or change the terms of a collective

agreement.

7

0.The Employer quoted a number of authorities which held that an arbitrator in Alberta

does not have the statutory authority to relieve against the mandatory time limits in

collective agreement (See AUPE and Alberta Health Services (Press), Re, 133

C.L.A.S. 35, 284 L.A.C.(4th) 166 (McFetridge) at paras 144 - 147; U.S.W.A., Local

5

220 v GenAlta Recycling Inc. , 124 L.A.C. (4th) 331, 76 C.L.A.S. 124 (Hornung) at

paras 67 - 70 and Core-Mark International Inc. and UFCW, Local 401 (Hu), Re, 125

C.L.A.S. 306, 127 C.L.A.S. 64, 267 L.A.C. (4th) 47 (Kanee) at paras 60 -62.

1.In Core-Mark International v UFCW (supra) at para 65 Arbitrator Kanee adopted the

reasoning of Arbitrator O’Shea in U.S.W.A., Local 6962 v Union Carbide Canada

Ltd. (1968), 19 L.A.C. 412 (Ont. Arb.) at paras 414 - 418 (upheld by the Supreme

Court of Canada):

An arbitrator has no power, in such event, to weigh the harshness of the result in

order to justify giving relief against what might be a minor variance from the time

Page 15 of 51

limitations which the parties have agreed to. An arbitrator’s function is to interpret

the intention of the parties as expressed in the collective agreement and this

function is not fulfilled when an arbitrator gratuitously modifies the provisions of the

agreement in order to obtain a result which in his opinion is equitable.

7

2.The Employer argued that the Union is asking the Arbitrator to do what Arbitrator

O’Shea expressly stated an arbitrator has no power to do, that is to modify a

substantive provision of the agreement in order to obtain a result which they feel is

equitable, despite the fact that both the Collective Agreement and the Alberta Labour

Relations Code prohibit such a modification.

What is the subject of the grievance and when did it arise?

7

3.The Employer argued that the subject of the Grievance is clearly set out in the

Grievance itself; the Grievance specifically refers to statements made by the Director

of the ERC at the meeting during which he was informed that the Grievor had been

sexually assaulted by a supervisor. The parties agree that the meeting was between

June 18 and July 4, 2011. The Grievor alleges that during this meeting she was told

“to put it (her allegation of sexual assault) in a book, put it on the shelf and forget

about it.” The Employer argued that these allegations form the basis for this

grievance. The Grievor claims that these statements were made at their initial

meeting which she attended along with her Union Steward (SH). The Employer says

that this shows that it was during this meeting that the Grievor became aware of the

subject matter of her grievance. She did not lodge a complaint or file a grievance

concerning the Director’s actions within the 14 day time limits set by agreement in

the Collective Agreement. The Employer was not advised of her complaint until

approximately 5 years later, on July 6, 2016 when this Grievance was filed.

7

4. The Union Steward (SH) who attended the meeting with the Grievor testified at the

Jolliffe hearing and gave evidence concerning what was said by the Grievor and the

Director at the meeting. She recalled that they discussed the Grievor having been

sexually assaulted by a more senior co-worker who held an in-scope supervisory

position and the Grievor’s choice not to file any formal complaint. SH did not recall

the Grievor indicating that she wanted an internal investigation, or even that the

Director discuss the situation with the perpetrator. She and the Grievor raised the

issue of the Grievor not ever being assigned to work with her assailant and not

wanting to proceed on any formal basis. She recalled the Director suggesting that

she would have to “put it in a book and set it on the self”, which she considered to be

a very insensitive remark, even an “atrocious” one. (see para 23 above for the

excerpt from the Jolliffe decision). Arbitrator Jolliffe’s summary of the evidence given

by SH supports the Director’s version of the meeting.

7

5.The Director’s evidence at the Jolliffe hearing was also recorded by Arbitrator

Jolliffe:

Page 16 of 51

(The Director) recalled the 2011 incident reported to him by (the Grievor). By his

evidence, he recognized on listening to her that she was talking about

allegations of criminal conduct capable of generating a police investigation,

recalling that he advised on hearing her description that she should pursue that

course. He knew the grievor was aware, as would all employees, that in a

situation where the police commenced a criminal investigation following the

filing of a formal criminal complaint, the named coworker would be required to

report the situation to his manager by Regulation and a Correctional Services’

internal investigation would be opened at the point. However, by his

recollection, (the Grievor) was adamant that she wanted to keep it “confidential”

and not have him start any internal investigation. She did not want to go any

further. He recalled her advising that she had told the police constable she did

not want to have her coworker interviewed over this incident. He understands

that the individual was not interviewed by the police….(The Director) recognized

that the grievor did not want this person assigned to any supervisory duties

involving her. She wanted to stay away from him. By (the Director’s)

recollection, she wanted to work through it herself. …(The Grievor) indicated

that, in her view, it would be very difficult for her to continue working at the ERC

if it was revealed what had occurred.

(The Director) testified advising (the Grievor) that if she was not willing to

proceed against this person, did not want any police or internal investigation

commenced, she would have to put the issue “in a book on the shelf” and keep

it there in order to be successful in moving past what had occurred and not find

the situation too stressful for her. She could also change her mind and provide

a written complaint to her manager in order to trigger an internal investigation.

He recalled taking steps to ensure that they would not be scheduled to work

together on the same shift. He also acknowledged that he may have suggested

trying mediation as an option, but ultimately had simply been willing to follow

her request to keep the matter confidential and not proceed any further. By his

version, thereafter he was never advised or formed any impression that the

grievor wanted to discontinue keeping the matter confidential or was dissatisfied

that management had failed to move forward on the information itself without

her co-operation which would have been against her stated wishes at the

time.…

7

6.The Grievor’s testimony concerning this meeting at the Jolliffe hearing as set out by

Arbitrator Jolliffe at p 24 of the Award (Ex 12) as follows:

…

(The Grievor) acknowledged never having sought any criminal charges through

to the present time, now some six years following the event, confirming that she

had wanted (the Director) to keep the matter confidential, although she had

mentioned it to some of her co-worker friends. Her difficulty with (the Director) was

that she wanted him to assist in her feeling safe at work and she did not think that

this had been accomplished, firstly because he made the insensitive remark about

her “putting it in a book on the shelf” and forgetting about what had happened, and

secondly he did not successfully ensure that she would never come into contact

Page 17 of 51

with this individual in the workplace, she having found herself working in his area

at least twice.

7

7.There was another meeting between the Director, the Grievor and a different Union

Steward (JH) about eight months later on February 24, 2012. The Grievor requested

the meeting because on two occasions, she had been scheduled to work on the

same shift as her assailant. The Grievor alleges that during this meeting the Director

repeated the statement “…put it in a book, put the book on the shelf and forget about

it.” However neither the Union Steward (JH) nor the Director recalled that being

repeated. JH also testified at the hearing of the Grievor’s termination grievance. His

testimony was summarized by Arbitrator Jolliffe at page 28:

Another coworker, (JH), was a union steward in 2012. At some point that year, he

became aware that somehow the grievor had found herself working under the

perpetrator’s supervision, and he intervened. It led to (the Director) contacting (the

Grievor) by email to advise that it had occurred during a shift exchange and that he

was willing to sit down and discuss any concerns with her. (JH) was not yet aware

of the circumstances. He and (the Grievor) met with ( the Director) and obtained

(the Director’s) assurance that he would look into the issue of ensuring that she

would never be assigned to work with this person. (JH) was aware that there had

been no explanation provided to shift managers, their only knowing that the two

should not be working together on the same shift. He recalled the (Director)

raising the prospect of possible mediation and asking what she wanted, with her

saying she wanted him to be removed from any supervisory involvement with her.

By his impression, (the Grievor) was “stunned and mortified” over any suggestion

that there be some attempt at mediating the situation which presumably would

have involved meeting with this person. He also acknowledged that (the Director)

indicated that he would be looking into how it came about that they were assigned

to work together, and he would be talking to the shift managers.

7

8.According to the Employer, the Grievor was aware of the subject matter of the

Grievance after the first meeting and if not, she was fully aware of it on February 24,

2

012 or at the latest, three weeks later when the Director did not get back to her

Union Steward.

9.The Employer pointed out that the Grievor fully participated in the discussions at

both these meetings, she advised the Director that she was not going to proceed

with a criminal investigation and had instructed the EPS not to question her assailant

or anyone at the ERC. The Director testified that the Grievor understood that the

sexual assault she described was a criminal matter and that if the police

investigation proceeded, it was likely that there would also be an investigation by the

Employer which would involve her assailant. There is uncontroverted evidence that

Grievor said she wanted to continue in her job at the ERC and was concerned that if

it became known that she had reported a co-worker to management she might be

labeled a “rat”, ostracized by her coworkers or more serious consequences. She

indicated that if that happened it might be difficult for her remain at the ERC. The

Director understood that confidentiality was important to her and agreed to honour

her wishes.

Page 18 of 51

8

0.The Employer acknowledged that the Director admitted making the comment about

putting the matter aside (“to put her complaint in a book and put the book on the

shelf”) but pointed out that the comment was made in the context of the Grievor’s

decision to continue in her job at the ERC and not have the incident investigated.

The Director advised her that to continue in her job at the ERC, she would have to

put the incident aside. The Director said that he was not telling her to do so, rather

he was advising her that these were her options if she didn’t want an investigation

and wanted to keep the incident confidential. The Director indicated that he

understood that what she wanted was to continue working at the ERC as if nothing

had happened and to do so she would have to put this incident aside. According to

the Director, at the first meeting he offered to arrange for her to work on a different

shift than her assailant and understood that this was agreeable to both the Grievor

and the Union.

8

1.The Employer pointed out that for the next 8 months, the Director heard nothing and

assumed that scheduling them on different shifts was working. However, she

contacted him on February 22, 2012 because she had twice been scheduled on the

same shift as her assailant. He responded immediately and explained that this

problem may have been because of an overtime shift. He explained that for reasons

of confidentiality, he had not been able to tell the shift managers why it was

necessary to keep them apart. When her assailant did a shift exchange, the shift

manager did not know that this would cause a problem.

2.The Employer said that the other reason the Grievor contacted the Director in late

February was to advise him that her assailant was meeting other women using an

alias. She had obtained this information from the bartender at the swingers bar and

from discussions with female inmates at the ERC. The Grievor’s email infers that her

assailant may have committed other sexual misconduct using a false name. In his

email reply, the Director advised the Grievor that the matter had been addressed at

an official level however, he did not share the results with her. At the hearing he

testified that the investigation revealed that there was no basis for the Employer to

take action.

8

3.The Employer argued that the Director’s version of the meetings should be preferred

in part, because it is corroborated by what actually happened; she continued in her

job at the ERC and was assigned to a different shift than her assailant. Further, the

Employer did not proceed with an investigation and honoured her request for

confidentiality. Although there is evidence that she told a few of her friends and co-

workers as well as three or four union stewards who accompanied her to meetings,

JH, the union steward who accompanied her to the meeting on February 24, 2012

testified that he didn’t know about the sexual assault until just before the meeting

and testified “It was most certainly not common knowledge around the jail.”

8

4. The Employer argued that if there is any conflict in the evidence concerning what

was said at the initial meeting, an adverse inference should be drawn from the fact

that the Union Steward (SH) who attended the meeting was not called to testify

despite the fact that she remains employed at the ERC and is a member of the

AUPE Bargaining Unit.

Page 19 of 51

8

5.The Employer also raised an objection with respect to testimony given under oath by

the Grievor. The testimony which Counsel objected to attributed certain statements

to the Director during the meeting of February 24, 2012. Counsel’s objection was

that the contradictory evidence was not put to the Director and he was not given an

opportunity to deny, comment or explain this evidence when cross examined by

Counsel for the Union. The Employer objected that this is contrary to the rule in

Browne v. Dunn:

Rule in Brown v. Dunn (1893), 6R 67 (H.L.) a party seeking to impeach the

credibility of a witness must put the contradictory evidence to the witness in order

to provide an opportunity for the witness to respond and explain the contradiction.

This principle for fair advocacy has come to be known as the rule of Browne v.

Dunn and is now embodied in sections 20 and 21 of the Evidence Act (R.S.O.

1

990, c. E. 23).

8

6.The Employer pointed out that the Grievor had Union representation at all relevant

times including both the meetings where the conduct which forms the subject of the

Grievance is alleged to have occurred. The Employer argued that if the Grievor or

the Union on the Grievor’s behalf had a problem with how this matter had been

handled by the Director, they were required to file a grievance within 14 days

following the meeting.

8

7.The Employer pointed out the Grievor and her union stewards were able to fully

participate in these meeting and that the subject of this Grievance is what she and

her advisors witnessed at the time. According to the Employer, there is no question

that she was aware of the subject of the Grievance.

8.The Employer further argued that there is no evidence that the Grievor lacked the

capacity to understand the subject of the grievance. Dr. Dushinski met the Grievor

for the first time six years later in 2017. She could not provide an opinion with

respect to the Grievor’s psychological or emotional state six years before she met

her. Dr. Dushinski suggested that the Grievor may have been unable prosecute the

grievance until she felt it was safe to do so but the Employer argued that the ability

to prosecute a grievance is not the test the parties agreed to in Article 29.03.

8

9.Counsel acknowledged that Article 29.03 includes a subjective element however that

element is awareness of the subject of the grievance, not the ability to prosecute the

grievance. According to the Employer, the Union’s argument makes the mandatory

time limits in the Collective Agreement meaningless. All a grievor has to do is claim

that they felt unsafe, and therefore, lacked the ability to prosecute the grievance

despite the fact that the subject of the grievance was known to them. The Employer

argued that Union’s interpretation runs counter to the established jurisprudence

between the parties regarding Article 29.03. The Union’s position would eliminate

the protections that mandatory time limits are intended to afford and is essentially a

request for the Arbitrator to amend, or alter a substantial term of the Collective

Agreement which is something an arbitrator is not permitted to do.

Page 20 of 51

9

0.The Employer argued that the evidence shows that the Grievor was aware of the

subject of the Grievance. If she lacked the ability to prosecute the grievance within

the required time frame, she or AUPE on her behalf, should have arranged to extend

the time limits in writing or file the Grievance and have the matter put in abeyance

until such time as the Grievor was able to prosecute the matter. According to the

Employer, the Union bears responsibility for its failure to do so. Counsel pointed out

that it was the testimony of the Employer’s labour relations representative was not

contradicted on this point; AUPE has made such requests in the past and the

Employer has accommodated the Union’s requests.

9

1.In further response to the Union’s argument that the Grievor was unaware of the

subject of the Grievance, the Employer argued that an arbitration board need not

accept the evidence of the grievor in deciding when they first became aware of the

subject of the grievance. The Employer referred to Alberta and AUPE, Re, 1988

CarswellAlta 849 (McFetridge) at para 18.

1

8.

The previously outlined words of Article 29.03(a) of the Collective

Agreement state that an employee wishing to pursue a grievance shall submit it in

writing within fourteen (14) days of the date upon which the subject of the

grievance occurred or the time the employee first became aware of the subject of

the grievance. The words read “became aware”, not “became aware or ought to

have become aware”. It is a subjective test. Although a Board may not always

accept the evidence of a Grievor in deciding when he first became aware of the

subject of his grievance, the time will not begin to run until the Board is satisfied

that the Grievor knew of the subject of the grievance. (emphasis added)

9

2.The Employer also relied on Alberta and AUPE (Jensen), Re, 1991 CarswellAlta 983

(Koshman) at para 59 for the principle that that proof of “actual awareness” is not

necessarily required:

5

9. In the Board’s view the test for awareness is not necessarily restricted to

‘actual awareness’ in the sense that one must prove what is actually going on in

the mind of a grievor. That would be virtually impossible in most cases without an

admission by the Grievor to that effect. Moreover if that were the case the time

limit in Article 20.03(a) would be meaningless since it would always be open to

deny actual knowledge and thereby extend the time limits for grieving under Article

2

9.03(a). A grievor cannot be permitted to deny actual knowledge in the face of

compelling evidence to the contrary. (emphasis added)

9

3.The Employer argued that the jurisprudence establishes that there is an objective

element to Article 29.03; the Grievor’s knowledge of their right to file a grievance is

irrelevant to this analysis. The Employer relied on Arbitrator Koshman’s analysis in

Alberta and AUPE (Costuros), Re, 1999 CarswellAlta 2063 (Koshman) at para 22:

2

2.

…But where the facts and circumstances are known to the grievor, even

though the grievor may not know they have the right to grieve or the prospects of a

successful grievance, they are at that point aware of the subject of the grievance.

In this case the Grievor knew her employment was terminated and was specifically

Page 21 of 51

told that she was being denied any severance, the very thing she seeks in this

grievance. She knew that in 1995. What she did not know is had she grieved at the

time she may have been successful based on the results of the Grande Cache

Award. To accede to the Union’s arguments would result in equating ‘awareness”

in Article 29.03(a) to when one’s legal rights, or in this case, when a decision is

rendered that supports a claim. That is not the same as being aware of the subject

of the grievance. Nor do we think that was the intention of the parties. Nor is such

an intention supported by the language of that Article. (emphasis added)

9

4.It was the Employer’s position that the weight of arbitral jurisprudence with respect to

the capacity of a grievor to understand the subject of the grievance has established

that it is not enough to show that the grievor had a mental condition or disability; the

grievor must provide contemporaneous medical evidence that indicates that at the

relevant time she was mentally debilitated such that she lacked the capacity to

understand the subject of the grievance. This medical evidence may be rebutted by

the grievor’s actions in other aspect of her life.

5.The Employer relied on Canada Post Corp v CUPW (1993), 32 CLAS 621, 38 L.A.C.

(4th) 141 (Jolliffe) a case involving a grievor’s failure to comply with the mandatory

time limits . At the time of his termination, the grievor had been diagnosed and was

being treated for depression and it was argued that he did not have the mental

capacity to understand the significance of his termination. There was medical

evidence that the grievor was not able to make rational decisions but this was

provided two days before the hearing by a physician who who didn’t see the grievor

until 15 months after the date of his termination. Arbitrator Jolliffe noted that other

than his own self-serving testimony, there was no contemporaneous medical

evidence as to the grievor’s mental health at the time he was notified of his

termination. The arbitrator noted that the actions of the grievor in dealing with other

aspects of his termination showed that he did have capacity and upheld the

Employer’s objection ruling that he was without jurisdiction to the matter on the

merits.

9

6.The Employer also referred me to Canada Post Corp v CUPW (2005), 83 CLAS 283,

2

005 CarswellNat 7940 (Chertkow) which followed this same line of reasoning.

There the grievor was terminated for absenteeism but his grievance was not filed

within the mandatory time limits. The Union argued that the grievor was not capable

of requesting leave or returning to work because he was addicted to cocaine. In

denying the grievance, Arbitrator Chertkow pointed to the fact that the grievor was

able to work as a drug dealer and manage two drug houses for a gang and held that

his addiction did not prevent him from understanding that his absenteeism would

lead to termination.

9

7.The Employer pointed out that except for the period the Grievor was off work on an

unrelated WCB claim, the evidence establishes that she was capable of working full

time from 2011 to 2015 and that there were no reported performance issues during

that time. She never indicated that she was unable or unfit to report for work and

never filed a WCB claim for psychological trauma which she now claims was caused

by the Director’s comments.

Page 22 of 51

9

8.According to the Employer, the evidence establishes that the Grievor had capacity,

and was able to comprehend the subject of a grievance long before June 22, 2016,

which is 14 days before she filed this Grievance.

9.Further, the Employer pointed out that the evidence establishes that the Grievor was

also capable of pursuing and did pursue a Respectful Workplace Complaint against

another co-worker in 2015. The Employer argued that this undermines the Union’s

argument that she either did not understand the subject of this grievance or was

incapable of prosecuting it because she felt it was unsafe to do so. The Employer

argued, if that was true in 2011, its was no longer true in 2015. She demonstrated

that she had the capacity to understand and prosecute a Respectful Workplace

Complaint more than a year before she filed this grievance.

9

1

9.The Employer also pointed out that the Grievor was capable of filing a grievance

within the mandatory time limits a year before she filed this grievance. She filed a

grievance within 14 days after her employment was terminated in July, 2015. The

Employer argued that the fact that she both filed and prosecuted that grievance is

clear, cogent and objective evidence that she had the capacity to understand the

subject of a grievance and was able to navigate, participate in and prosecute a

grievance.

00. Furthermore, the Employer pointed out that the expert’s opinion that the facts in

this case were such that she was not psychologically capable of appreciating the

subject matter of the grievance before July, 2016, does not stand up to closer

scrutiny because the same emotionally sensitive facts were brought forward by the

Grievor in her termination grievance. At her termination hearing, the sensitive

subject matter which lead to this grievance was examined for the purpose of the

Union argument that her 2011 sexual assault should be considered by the

Arbitration Board as a factor mitigating the severity of the penalty imposed.( See

Jolliffe Award Exhibit 12, August 18, 2017 at page 24)

1

01. The Employer pointed out that Dr. Dushinski first met the Grievor in April, 2017

approximately 6 years after the events which form the subject of this Grievance. As

a result, Dr. Dushinski cannot provide any contemporaneous evidence as to the

Grievor’s mental capacity during the relevant time period (2011 or 2012) . Dr.

Dushinski’s contacts with the Grievor all occurred during a time frame which is not

relevant to the reason why she did not file this grievance in accordance with the time

limit in the Collective Agreement. The Employer referred to Arbitrator Jolliffe’s

decision in Canada Post Corp v CUPW (supra) that without contemporaneous

medical evidence, we have only the Grievor’s self-serving testimony as to her ability

to understand the subject matter of or prosecute the grievance.

1

02. The Employer also pointed out that after meeting the Grievor in April 2017, Dr.

Dushinski advocated on her behalf to obtain compensation from the Victims of Crime

Compensation Board and provided personal counselling to her on 38 occasions. Dr.

Dushinski testified that for 14 years she was the Director of Client Services at the

Sexual Assault Centre of Edmonton which included advocating on behalf of many

sexual assault victims. She testified that she believes that sexual assault victims

Page 23 of 51

generally don’t get the support they need and admitted that in preparing her report

and testifying at the hearing she was advocating for her client. The Employer argued

this the value of her opinion.

1

03. According to the Employer, the proper test is whether the Grievor was aware of

the subject matter and had the capacity to understand the subject of the grievance

(see Alberta and AUPE Re Costuros (Koshman)) supra para 22). The Employer

argued that nothing Dr. Dushinski said addressed that question. Dr. Dushinski’s

evidence was that the Grievor lacked the ability to prosecute the Grievance because

she did not feel that it was safe for her to do so. However, Dr. Dushinski ’s opinion is

based solely on what the Grievor told her years after the event and furthermore it is

at odds with the objective evidence that in 2015, more than a year before she filed

this Grievance, she filed a Respectful Workplace Complaint against another CO111

and a timely grievance regarding the termination of her employment. Furthermore, in

her submission to arbitration in that case, she included the emotionally sensitive

facts of her sexual assault as a factor which was relevant to her misconduct and the

severity of the penalty.

Continuing Grievance

1

04. The Employer anticipated that the Union would argue that this is a continuing

grievance and provided authority on the issue. What constitutes a continuing

grievance was set out in Cameron v Deputy Head (Office of the Director of Public

Prosecutions), 126 C.L.AA.S. 19, 2015 CarswellNat 8737 at para 115:

As to the argument that these are continuing grievances, as described in

Galarneau, I have no doubt there are continuing sore points in the grievor’s

relationship with the employer; however, that is not the definition of a continuing

grievance, and I cannot apply the concept. A continuing grievance, very briefly, is

based on a repeated breach of the collective agreement that is grieved at one

point. (emphasis added)

1

05. The above decision is consistent with the definition relied upon by the Ontario

Court of Appeal in In U.G.C.W., Local 246 v Dominion Glass Co. 1973 CarswellOnt

8

93 (CA) at para 8:

…

we are all of the view that the Board reached the right result and that this was

not the subject matter of a continuing violation. The grievance had to do with

action taken by the company on a specific occasion and while the consequences

may have been continuing, the violation was embraced in the particular action

taken by the company in mid-October.

1

06. The Employer argued that even based on the Grievor’s version of these events,

there was a single, precipitating act by the Employer that is the subject of this

grievance. That act occurred either in 2011 during the meeting late June or early

July when the Director made the “put it in a book and put the book on the shelf”

comment and agreed to the Grievor’s request not to initiate a formal investigation of

her sexual assault (or alternatively, at the February 24, 2012 meeting). It was

Page 24 of 51

communicated to the Grievor and her Union Steward at that time that the Grievor

would continue to work at the ERC but on a different shift than her assailant. The

subject matter of this Grievance is the Director’s comments about putting the matter

on the shelf and his failure or refusal to conduct an investigation. Although there

were continuing consequences of this decision, there is no recurring breach of the

Collective Agreement.

Excessive Delay

1

07. The Employer argued that the period of 5 years between the date of the meeting

where the conduct occurred and the date the Grievance was filed is unreasonable

by any measure. The Employer referred to a number of cases where delays of 10

months, 12 months and 2 years were held to be excessive in the context of labour

arbitration (see Sofina Food Inc. and UFCW, Local 401 (Preliminary Award in

Delay), Re, 139 C.L.A.S. 153, 301 L.A.C. (4th) 417 upheld by the Alberta Court of

Appeal UFCW, Local 401 v Sofina Food Inc. 2021 ABCA 191.

1

08. The Employer further argued that responsibility for the initial 5 year delay rests

entirely with AUPE and the Grievor and further, that the delays in advancing the

matter to arbitration were also due to the Grievor requesting that the matter be

rescheduled several times.

09. The Employer argued that if this case were to proceed on its merits, the

Employer stands to suffer clear prejudice based on the delay. What was said at a

meeting in 2011and what was said at a meeting in 2012 are in dispute. As of the

date of this hearing, the meetings occurred more than a decade ago. The Employer

argues that the natural fading of witness memories caused by the delay and the

rescheduling of the level two hearing will seriously prejudice the Employer’s ability to

effectively present its case and defend its actions in 2011. The Employer pointed out

that the parties themselves are uncertain as what day the 2011 meeting took place.

1

10. Furthermore, AUPE has raised the issue of the Grievor’s mental capacity to

prosecute this matter as well as the impact that the Employer’s actions had on the

Grievor in 2011. Raising issues concerning the Grievor’s mental state this long

afterward is problematic because it is impossible to retroactively examine this in any

meaningful way. The Union has not provided any contemporaneous medical

evidence and the Employer is precluded from acquiring any contemporaneous

medical assessment due to the excessive delay involved.

Estoppel and Waiver

1

11. The Employer anticipated the Union’s estoppel argument and referred to the

decision of Arbitrator Kanee in Core-Mark International Inc. and UFCW, Local 401

(Hu), Re, 125 C.L.A.S. 306, 127 C.L.A.S. 64, 267 L.A.C. (4th) 47 (Kanee) at paras

2

6 -30 . The Employer argued that the arbitral jurisprudence is clear that a party

relying on the doctrine of estoppel must establish that the other party has, by words

or conduct made a promise or assurance which was intended to affect their legal

relationship and to be acted on. The Employer argued that here, the onus rests on

Page 25 of 51

the Union to prove that: 1) The Employer promised that it would not rely on the strict

time limits in the Collective Agreement; 2) the Employer intended to alter the legal

relationship between the parties; 3) the Union relied on the Employer’s promise to its

detriment.

1

12. According to the Employer, the Union failed to establish even one of the three

required components of estoppel; there is no evidence of a representation by the

Employer with respect to the time limits for filing a grievance, the Director testified

that there was never any discussion of time limits or the grievance process and his

evidence was not contradicted; there was no evidence that the Director or anyone

else intended to waive or extend the mandatory time limits and no evidence of a

practice of the parties to ignore time limits for filing a grievance. On the contrary, the

Employer objected to the failure of the Union to observe the mandatory time limits

long before the matter was set down for a hearing.

UNION ARGUMENT

1

13. The Union argued that the Employer’s technical approach to the issue of

timelines is inappropriate because this is a sexual assault case. According to the

Union, a sexual assault victim is a unique litigator and the time limits associated with

her Grievance must be interpreted in that context. The Union argued that it is critical

that the interpretation of the time limits be through the eyes of a sexual assault

survivor.

1

14. It was the Union position that as a sexual assault survivor, the Grievor was

scared, helpless and confused. She was unable to come forward within the usual

time limits. This is why sexual assault victims are unique litigators and why it is

essential to keep this in mind when assessing witness credibility.

15. The Union argued that the unique nature of sexual assault cases has been

recognized by the Courts. Counsel referred to a number of Criminal cases. The

Supreme Court of Canada in R. v. Seyboyer and R. v. Gayne dealt with a

constitutional challenge to the “rape shield” laws in ss. 276 and 277 of the Criminal

Code of Canada. The defence argued that these provision infringed on fundamental

principles of justice and the right to a fair trial by prohibiting the cross examination of

sexual assault victims on their sexual history and by excluding evidence of a victim’s

sexual history for purposes of supporting or challenging credibility. The Court

commented that the goal of the legislation is to rid the process of outmoded, sexist

based evidence which is irrelevant and prejudicial. The majority ruled that s. 277 did

not infringe on the constitutional right to a fair trial because a victim’s sexual

reputation is irrelevant to the issue of credibility however it held that s. 276 went too

far in prohibiting cross examination on a victims sexual history because in some

cases sexual history may be relevant where its probative value outweighs its

prejudicial effect. According to the Union, these cases are relevant here because the

courts recognized that decision makers must be aware of and guard against

discriminatory beliefs based on societal stereotypes.

Page 26 of 51

1

16. The timing of the disclosure of a sexual assault was an issue in R v. ADG 2015

ABCA 149. The Alberta Court of Appeal held that the trial judge erred in relying on

discredited myths and stereotypes about the disclosure of sexual abuse, particularly

in children. The Court stated that the law is clear that no presumptive adverse

inference may be drawn from a failure to immediately disclose sexual assault and

that the trial judge erred in basing his decision on his own expectations of how a

child would react to a sexual assault. The Court concluded that it cannot be

assumed that sexual assault victims will react to abuse in any objective identifiable

way.

1

17. The Union also referred City of Calgary v. C.U.P.E. Local 37, 2019 A.B.C.A. 388.

It concerned a grievance brought on behalf of a City Supervisor who had been

dismissed for having squeezed the breast of a female employee. In assessing the

appropriateness of the penalty, the Arbitrator relied on the factors set out in Wm

Scott &Co. [1977] C.L.R.B.R. 1 (P.C. Weiler) including his length of service, the fact

that this was an isolated incident at the lower end of the sexual harassment

continuum and that the victim had not suffered any lasting distress. The Arbitrator

substituted a long suspension for dismissal and ordered the Grievor to be reinstated.

The Arbitration Award was upheld by the Court of Queen’s Bench but overturned by

the Alberta Court of Appeal which ordered a new hearing by a different arbitrator.

1

18. The Court of Appeal indicated that social context is relevant in assessing a

grievance for sexual harassment and that a court may take notice of reliable and

relevant social research and socio-economic data in order to understand the social

framework in which the facts of a particular case are to be adjudicated. The Court

commented that employers and unions have struggled for decades to rid workplaces

of sexual harassment and sexual assault through education, training and

progressive discipline. The Court referred to Nor-Man Regional Health Authority Inc

v Manitoba Association of Health Care Professionals, 2011 SCC 59 at paras 5-6 and

indicated that arbitrators must exercise their mandate in a manner consistent with

the objectives and purposes of the statutory scheme, the principles of labour

arbitration, the nature of the collective bargaining process and the factual matrix of

the grievance.

1

19. The Court said that arbitrators must be mindful of changing social values about

acceptable sexual conduct in the workplace and held that “the Arbitrator’s reliance

on precedents that were incongruent with modern society’s view of acceptable

sexual conduct in the workplace may well make the award unreasonable.”

20. The Court noted that recent changes in Occupational Health and Safety

legislation speak to changing cultural and social expectations in the workplace and

that both the legislated changes and arbitral jurisprudence recognize that an

employer has an obligation to protect its employees from sexual harassment. The

Court indicated that this extends to terminating an accused employee, if necessary,

to protect its employees from sexual harassment. The Court indicated that the

arbitrator had focussed on the interests of the complainant and the Grievor without

adequately considering the interests of all employees. The Court indicated that the

Page 27 of 51

Grievor’s dishonesty during the investigation showed that there was a breakdown in

the trust necessary for a viable employment relationship.

1

21. According to the Court of Appeal, older cases may no longer be applicable and

that social context informs the application and interpretation of the Collective

Agreement. It was the Union’s position that the cases show that cultural context

must be taken into consideration and stressed that the Grievor is an aboriginal

woman who grew up in an abusive household and is the daughter of a residential

school survivor.

22. The Union also referred to R. v. Barton [2019] 2 S.C.C. 149, an appeal by the

Crown in a case where the accused had been acquitted of the murder of an

indigenous prostitute. A new trial was ordered in part because the trial judge failed to

properly caution the jury to be mindful of discrimination against indigenous sex

workers as is required by s. 276 of the Criminal Code of Canada. The Union relied

on paras. 197 - 198 and argued that this is the lens through which the Grievor’s

circumstances must be viewed:

1

97. Trial judges, as gatekeepers, play an important role in keeping biases,

prejudices, and stereotypes out of the courtroom. In this regard, one of the main

tools trial judges have at their disposal is the ability to provide instructions to the

jury. Bearing in mind this Court's admonition that "it cannot be assumed that

judicial directions to act impartially will always effectively counter racial

prejudice" (at para. 21), such instructions can in my view play a role in exposing

biases, prejudices, and stereotypes and encouraging jurors to discharge their

duties fairly and impartially. In particular, a carefully crafted instruction can

expose biases, prejudices, and stereotypes that lurk beneath the surface,

thereby allowing all justice system participants to address them head-on -

openly, honestly, and without fear.

1

98. Trials do not take place in a historical, cultural, or social vacuum.

Indigenous persons have suffered a long history of colonialism, the effects of

which continue to be felt. There is no denying that Indigenous people - and in

particular Indigenous women, girls, and sex workers - have endured serious

injustices, including high rates of sexual violence against women. The ongoing

work of the National Inquiry into Missing and Murdered Indigenous Women and

Girls is just one reminder of that painful reality. …

1

23. In reviewing the facts, the Union highlighted the Grievor’s testimony:

^-The Grievor is an indigenous person who has a tragic background;

^-She has suffered intergenerational trauma of residential schools through her

mother;

^-She has limited education;

^-She met with the Director within two weeks of her sexual assault;

Page 28 of 51

-

At the meeting she was provided with three options:

i) Meet with her assailant and the Director to mediate the dispute;

ii) She could “put it in a book and put the book on a shelf”;

iii) Prepare to work with her assailant.

^-She was not willing to meet with her assailant and believed that the Director was

telling her to shut up, and that she had no choice but to follow his direction;

^-While working at both the old and new ERC, she had direct and indirect contact

with her assailant;

-

She remained severely distraught regarding the continuing contact, specifically

with regard to an incident at the new ERC during muster;

^-She met with the Director again on February 24, 2012 about having been

scheduled to work with her assailant and indicated that she wanted something

done about it;

^-They discussed the possibility that a complaint to management about a co-

worker could result in negative consequences; rats in lockers, locked in units

without cover, tires slashed, etc.

^-She did not receive medical assistance between 2015 - 2017;

^-Following her termination she abused sleeping pills, Ativan, and alcohol;

^-Following her termination she finally became free, and was no longer worried

about losing her job and could come forward.

1

24. The Union acknowledged that there is a dispute concerning what happened in

the first meeting between the Grievor and the Director however the Union indicated

that some facts are not in dispute; the Director believed that she had been raped

however he offered her limited support; he advised her that an investigation would

result in the incident becoming public and could lead to her being ostracized by her

co-workers; he indicated that he did not want to do anything that would put her

health and safety at risk; he offered to meet with the Grievor and her assailant to

mediate the matter. After she rejected his offer to mediate, he suggested that she

“put it in a book and put the book on the shelf.” The Union indicated that the Grievor

understood that he was directing her to shut up and go back to work. She was

concerned for her job and felt she had no choice but to do as he told her to do.

According to the Union, the Director advised the Grievor that his door is open and

that she could come back if there was a problem.

1

25. The Union pointed out that Dr. Dushinski testified that the Employer’s response

re-traumatized the Grievor.

26. According to the Union, what happened at the second meeting on February 24,

2

012 is also in dispute however the Union argued that the Grievor’s version is

supported by the notes her Union Steward took during the meeting. According to the

Page 29 of 51

Union, the Director again offered to meet with the Grievor and her assailant to

mediate the matter. This proposal was shocking to the Grievor and was seen as

insensitive and showed that the Director didn’t appreciate the level of anxiety and

trauma the Grievor was experiencing. The Union Steward testified that it brought the

Grievor to tears. He testified that she was crying inconsolably during and after the

meeting.

1

27. The Union argued that the Director actively discouraged an investigation

indicating the “we don’t want this to go next door.” This was understood by the

Grievor and her Union Steward to mean that he did not want to involve his superiors.

According to the Union, the Grievor was encountering her assailant as often as two

times per shift because he performed a number of different jobs which required him

to move through the institution or interact with COs from different parts of the ERC.

28. The Union Steward’s notes indicate that the Grievor made it clear that she

wanted her assailant transferred and his conduct investigated. According to the

Union Steward, the Director said he would look into the problem and get back to

them. According to the Union Steward, after he pressed the Director for a date and

he agreed to respond in three weeks however he never did.

1

29. Following the February 24, 2012 meeting, the Grievor continued to work at the

ERC. She was devastated when she heard that her assailant had been promoted.

30. In October of 2013, she was in an altercation with an inmate and received a head

injury. She was off work in receipt of LTD/WCB benefits for about a year. She

returned to work in November 2014.

1

31. In April, 2015 the Grievor was suspended and following an investigation her

employment was subsequently terminated for cause on July 9, 2015. She filed a

grievance however her dismissal was upheld at arbitrattion.

32. The Union pointed out that Article 29.03(a) says that the time limit to file a

grievance doesn’t start until “ fourteen days …from the time the Employee first

became aware of the subject of the grievance.” Counsel argued that awareness

requires capability and processing.

1

33. The Union referred to Canada Post and CUPW (Dilliem) Re, [1993] C.L.A.D. No.

9

33. Counsel pointed out that the relevant Collective Agreements have almost

identical language: The CUPW Agreement provides that a grievance must be filed

not later than … 25 days from the date …. the employee first became aware of the

action or the circumstances giving rise to the grievance. The Dilliem case involved

an employee with a cocaine addiction whose employment was terminated following

a five month period of unapproved absence. He was deemed to have quit his job

and was notified that his employment was terminated. Several months later he filed

a grievance. There was a preliminary issue as to the timeliness of the grievance and

when he first became aware of the action giving rise to the grievance.

1

34. The Union argued that Mr. Dilliem was so completely out of control and in a

confused state due to a seriously debilitating substance abuse problem, that for

Page 30 of 51

several months he was incapable of making any rational or informed decision

respecting his workplace responsibilities. Arbitrator Jolliffe states in para 32 :

…

The essential question which speaks to a triggering of the timeliness

provision for filing a grievance is whether the grievor possessed the requisite

soundness of mind to understand ("first became aware") when he received the

Carr correspondence of May 14 that an action or circumstances had taken

place giving rise to a grievance. The action or circumstances were in the nature

of the Corporation taking the position that it was as at May 14, 1991 deeming

him to have quit his employment with the attendant result being cessation of the

employment relationship. Any inquiry into the grievor's state of mind at the time

and during the months which followed is for purposes of establishing whether

he comprehended what had occurred, the immediate ramifications of

employment cessation and whether he was capable of making any rational

decision to protect his interests by filing a grievance. Simply put the exercise

speaks to the level of the grievor's awareness, for if he had none or if it were

diminished to the point of not being able to comprehend the Corporation's action

or the choices available to him at that time, I am satisfied there could be no

notification as contemplated by article 9.09. (emphasis added)

1

35. In its submission, the Union argued that the essential question here is whether

the Grievor possessed the level of awareness necessary to trigger the time limiting

clock to begin. The Union argued that because she was a sexual assault survivor,

she did not have the capacity to become aware of the subject of her grievance or to

prosecute her claim while working in the same abusive employment environment as

her attacker. The Union argued that following her sexual assault, the Grievor was

frightened and confused and remained so for as long as she remained employed in

that environment. According to the Union, she did not have the soundness of mind

to be aware of the subject of the grievance.

1

36. The Union argued that its position is in accord with the expert opinion of Dr.

Dushinski, who indicated that much like a woman in an abusive martial relationship

or a child in an abusive family situation, as long as the Grievor remained in the

abusive employment relationship, she did not have the ability to understand her

situation, develop an awareness of it to the extent necessary to move forward. Like

an abused wife or child, the Grievor was unable to develop the awareness of her

circumstances until she left the abusive relationship and felt that it was safe to take

action through the grievance process.

1

37. The Union referred to Dr. Dushinski’s testimony and her expert opinion, which

states that some of the worst damage done to sexual assault survivors is not being

supported after reporting their sexual assault

38. The Union referred to (M.(K.) v. M.(H.) [K.M. v. H.M.], [1992] 3 S.C.R. 6 at para

2

2 where MacLaughlin J. (as she then was) outlined that the historical rationale for

limitation of actions based on three principles: (1) creation of certainty so as not to

hold defendants liable for “ancient obligations”; (2) a desire to foreclose claims

based on stale evidence ; and (3) to ensure plaintiffs are incentivized “to bring suit in

Page 31 of 51

a timely fashion.” She commented that such rationale was unpersuasive in the

context of tort actions for incest.

1

39. The Union argued that the same reasoning should apply here as it does in sexual

assault cases; there is no public benefit to protecting individuals who assist in

perpetrating sexual harassment from the consequences of their wrongful actions.

40. Further, the Union argued that in sexual assault cases the relevant evidence is

typically between the parties and referred to (M.(K.) v. M.(H.) [K.M. v. H.M.],(supra)

at para 25:

…

for victims of sexual abuse to complain would take courage and emotional

strength in revealing this personal secret, in opening old wounds. If proceedings

were to be stayed based solely on the passage of time between the abuse and the

charge, victims would be required to report incidents before they were

psychologically prepared for the consequences of that reporting.

1

41. The Union also relied on British Columbia Hydro and Power Authority v.

International Brotherhood of Electrical Workers, 258 (Termination Grievance) [2020]

B.C.C.A.A.A. No. 78 (B.C. Hydro). In that case a Sub-foreman was dismissed

following a sexual harassment complaint from an apprentice on his crew. One of the

issues considered by Arbitrator Love was a Union objection based on the fact that

the sexual harassment complaint was made well out side the one year time limit in

the Employer’s Respectful Work Place Policy (2.5 years after the harassment is

alleged to have occurred.) Arbitrator Love concluded:

The RWP [Respect in the Workplace Policy], agreed to by both parties,

represents a timely mechanism for dealing with sexual harassment complaints

and it does not provide for extensions.

…

I considered all the arguments, and determined that this is an appropriate

case for an investigation and arbitration, outside of those limits…”

1

42. The Union also referred to para 217 - 218 of the BC Hydro (supra):

Further, I must not disbelieve the complainant’s testimony because there was a

2

.5 year delay in the filing of her harassment complaint. The approach should

be similar to the approach when dealing with sexual assaults in a court setting.

The doctrine of recent complaint has not been a feature of the general law for

sexual assault matters for many years. Many complainants keep silent until they

gather the strength to participate in the process.

It is an error to rely on a stereotypical assumption that sexual harassment

survivors are likely to report an incident in a timely manner or behave in a

particular manner: R. v. W(R), [1992] 2 S.C.R. 122, R. v. D.D. [2000] 2 S.C.R.

2

75, R. v. A.D.G. [2015] A.J. No. 470 (C.A.)

1

43. The Union also relied on University of Manitoba v. University of Manitoba Faculty

Association (M.L. Grievance), [2008] M.G.A.D. No. 36 (University of Manitoba), a

Page 32 of 51

case involving the termination of an Associate Professor following a complaint of

sexual harassment from a student. The Union objected on the basis that the

complaint was not filed within the one year time limit provided by the Respectful

Work Place Policy. The Arbitrator noted at para 272:

To the extent necessary, I find that there were extenuating circumstances in this

case, those being the pressure that D.J. was under by reason of her being a

student under the control of her professor . It is totally understandable given the

conclusions that I have reached that D.J. was not able to exercise her free will

and therefore should not be bound by the time limitations in the University’s

Policy.”

In my view the limitation period in the RWP was discretionary and not

mandatory.

…

An employee can submit a request for an investigation up to six months after

attempting to resolve a situation involving potentially disrespectful behaviour.

1

44. The Union argued that the principles set out in BC Hydro and The University of

Manitoba support an arbitration of this case on the merits. The interests of

workplace safety demand that the Grievor not be deprived of an examination into

the consequences of a violent sexual assault due to a time limitation.

45. The Union pointed out that Dr. Dushinski was the only medical expert to give

evidence and testified that the Grievor’s history, the Employer’s comments and her

ongoing trauma supported the Grievor’s own evidence that she was unable to

proceed with her grievance until she did so in July, 2016.

Waiver / Estoppel

1

46. The Union argued that over the years there has been a substantial evolution in

the availability of equitable relief. That traditional compartmentalization of the

remedies such as acquiescence, waiver/election and estoppel have been

abandoned. The Union referred to Abitibi Consolidated Inc. v. Industrial Wood and

Allied Workers of Canada, local I-424, [2000] B.C.C.A.A.A. No 318 at para 37:

In recent years, the forms of equitable relief historically available at law have

evolved substantially. The trend has been to abandon the traditional

compartmentalization of remedies (eg. , acquiescence, waiver / election and

estoppel), as well as the strict tests for their application. There has been a

“blurring’ of doctrines and an emphasis on general principles of equity. If

anything, a more modern approach has advanced further in the courts than it

has in t he labour relations sphere.

1

47. The Arbitrator in Abitibi Consolidated (supra) at para 37 relied on the B.C. Court

of Appeal decision in Litwin Construction (1973) Ltd. v. Pan (1988), 29 BCLR (2d)

8

8:

Page 33 of 51

Instead, the court held that the law of estoppel essentially comprises one simple

question: “Has the party involving the statute affirmed the contract

unequivocally by his words or his conduct in circumstances making it unfair or

unjust for him to resile from that contract?

1

48. The Union argued that the Director made representations to the Grievor as well

as to the Union. The Union asserts that there were two instances where waiver/

estoppel was created:

a.. At the first meeting when the Director advised the Grievor that she need not

proceed now with the this matter and could “put it in a book on a shelf and forget

about it.”

b. In February 2012, the Director emailed the Grievor to see if she had changed

her mind with respect to how to proceed and in the February 24, 20212 meeting

when he suggested that he would get back to her and said that “we don’t want this

to go next door.”

1

49. According to the Union, in both these instances, the Director, the most senior

manager at the ERC, indicated to the Grievor that she could continue to bring these

matters forward at any time and that he would attempt to get back to her at some

point. The Union argued that the Grievor reasonably believed that this meant there

was no timeline limiting when she could bering this matter forward.

50. It was the Union position that the Grievor relied on these representations to her

detriment when she did not pursue these matters further - including by grieving.

Arbitrator Can Extend Timelines

1

51. The Union conceded that mandatory language in the Collective Agreement and

in the Labour Relations Code would not normally permit an extension of timelines

however it was the Union’s position that in cases involving sexual assault survivors,

timelines can and should be extended on the basis that they are not covered by the

typical considerations for mandatory timelines.

1

52. The union suggested that although the Labour Relations Code says that an

arbitrator or arbitration board cannot by its award alter, amend, or change the terms

of the collective agreement, this does not limit an arbitrator from considering the

factual matrix of the grievance (and grievor) and applying it correctly within the

confines of the collective agreement. The Union argued that it would not be a

violation of the Collective Agreement to conclude the the Grievor was not aware of

the subject of the grievance until she became psychologically capable of proceeding

in July, 2016.

1

53. In BC Hydro Arbitrator Love held as follows:

The RWP (Respectful Workplace Policy) is silent on the extension of the

complaint period. I accept the parties’ submission that I should apply criteria

Page 34 of 51

similar to the criteria for assessing timeliness for filing a grievance or referring a

matter to arbitration as set out in Re Pacific Forest Products Ltd. (Sooke

Logging Division) and International Woodworkers of America, Local 1-118,

[

1984] B.C.C.A.A.A. No. 235:

1

3. In my view, a determination of whether the burden under s. 98(e) has

been satisfied should proceed on the following considerations: (a) the degree

of force which the parties have given contractual expression to time-limits; (b)

whether the breach of the time limits was in the early or late stages of the

grievance procedure; (c) the length of the delay; (d) whether the applicant for

relief has a reasonable explanation for the delay; (e) the nature of the

grievance —ie. the impact on the grievor of a refusal to grant relief against

the time-limits; (f) whether the employer would suffer prejudice by the

granting of such relief, and (g) any other factors peculiar to the circumstances

at hand.

Continuing Grievance

1

54. The Union argued that this is an ongoing grievance and referred to Alberta

Union of Provincial Employees v. Alberta (Boulter Grievance), [2016] A.G.A.A. No.

5

8 at para 53. The Union argued that the conduct complained of gave rise to a

series of separately identifiable breaches, each one capable of supporting its own

cause of action. According to the Union, each day that the Grievor continued to work

at the ERC knowing that she may have to face her assailant, who continued to work

unimpeded and uninvestigated due to the Employer’s inaction, gave rise to a series

of separately identifiable breaches, each one capable of supporting its own cause of

action.

Laches

1

55. The Union pointed out that the Employer bears the onus to prove that the

doctrine of laches applies in these circumstances. The Union argued that the

doctrine of laches in arbitration is summarized i, Sofina Foods Inc. v United Food

and Commercial Workers’ Union, Local 401 (Fissenahion Grievance), [2019]

A.G.A.A. No. 6 att para 70:

…

a starting principle is noted by the arbitrator in Abitibi- Price, Inc. at page 6:

the application of reasoning analogous to laches is anything but automatic in

labour arbitration and that …a perusal of the arbitral jurisprudence does not

reveal a mechanical response to the problems arising from delay: p. 6 In that

case, the arbitrator held that the degree of prejudice to the applying party must

be severe enough that a) it is clear in advance that a fair hearing is impossible,

or b) outweighs the preference for a full hearing.

1

56. The Union argued that the Employer has not shown that it cannot defend against

the merits of this case due to the delay. The Employer’s witness was unclear with

respect to the availability of shifts schedule records after 2012 whereas both the

Page 35 of 51

Grievor and the Union Steward testified that the Grievor repeatedly had on the job

contact with her assailant throughout the years.

1

57. The Union argued that the Grievance concerns an important issue for both the

Grievor and the Employer; the delay was not caused by bad faith on the part of the

Grievor or the Union and that the Grievance was filed as soon as the Grievor was

mentally able to do so.

58. The Union argued that an adverse inference should be drawn against the

Employer because it failed to call the Grievor’s assailant to testify, he is the one

witness who would have definitive evidence as to the number of times they worked

together.

59. The Union argued that both the Supreme Court of Canada and our Court of

Appel have long held that arbitrators are to consider the Charter values within their

proper contexts. The Collective Agreement is a Government Contract and as such

Charter values and principles must be taken into consideration.

60. The Union argued that the Employer has taken a strict and conservative

approach to the application of the grievance procedure the effect of which is to

discriminate against one group of people, sexual assault victims and that constitutes

a violation of section 15 equality of rights under the Charter.

61. Counsel pointed out that in other contexts, the Grievor would have had

significantly more time to file her complaint:

A. In a private workplace setting she would have had 2 years to file a claim with

the Courts;

B. Under Occupational Health and Safety, she has an undefined amount of time

to bring forward a health and safety complaint;

C. There are no limitations against her bringing forward a claim in a criminal or

civil context against her assailant.

1

62. According to the Union, to interpret the Collective Agreement in the way

suggested by the Employer would go against Charter values, fairness at trial and

would ensure that unionized workplaces are the only enduring place where sexual

harassment continues to lurk unchecked due to archaic and discriminatory

interpretation of grievance procedures.

63. The Union argued in the alternative, the Director, by his actions, informed the

Grievor at their first meeting in late June or early July that she need not proceed

immediately with this but could instead “put it in a book and put the book on the

shelf.” According to the Union, this made it clear that the matter was open for further

discussion and which she could take sometime in the future if she chose

Page 36 of 51

1

64. It was the Union position that this meaning was affirmed by his email to her a few

days later to enquire if she had changed her mind as to how to proceed and also his

communications with her during their meeting in February. His statement “we don’t

want this to go next door” and his offer “to get back to her” are further evidence that

he was open to have her concerns brought forward at some point in the future. The

Union argued that the Grievor reasonably took this to mean that there was no

timeline to bring this matter forward. According tot he Union, she relied on these

representations to her detriment by not pursuing the matter further; by not filing a

grievance.

1

65. The Union also referred to Abitibi Consolidated Inc v Industrial Wood and Allied

Workers of Canada, Local 1-424, supra at para 37 to argue that the law of estoppel

essentially comprises a simple question: Has the party evoking the statute

unequivocal affirmed the contract in circumstances making it unfair or unjust for him

to resile from that contract?

66. According to the Union, the Director’s comments amount to a waiver of the

otherwise mandatory grievance language and it would unfair and unjust for the

Employer to object to her grievance going forward on the basis of timeliness.

ANALYSIS

1

67. The only issue before me is whether this Grievance can proceed to a hearing on

the merits. The Grievance was filed on July 06, 2016 approximately five years after

the conduct that is the subject of the Grievance. This is well beyond the 14 day

mandatory time limits agreed to by the parties in the Collective Agreement.

1

68. The Collective Agreement between AUPE and the Government of Alberta is the

source of my jurisdiction. Article 29.03 (a) says that a grievance must be submitted

within 14 days of the date upon which the subject of the grievance arose or the

Employee first became aware of the subject of the grievance. Article 29.05 (b)

prohibits arbitrators from adding to, altering or modifying any term of the Collective

Agreement. Articles 29.07(a) and (b) say that time limits are mandatory and can only

be extended by written agreement between the Employer and the Union and that

failure to pursue a grievance within the prescribed time limit shall result in the

abandonment of the grievance. Here there was no written agreement to extend the

time limits.

1

69. When this Grievance was filed on July 09, 2016, the Public Service Employee

Relations Act stipulated that Sections 134 to 146 of the Labour Relations Code

apply to arbitrations under that Act. Section 142(1) of the Labour Relations Code

stipulated that, subject to s. (2) no arbitrator, arbitration board or other body shall by

its award alter, amend, or change the terms of a collective agreement nor make any

decision inconsistent with it nor deal with any matter that is not a proper matter for a

grievance under the Collective Agreement. Both the Collective Agreement and the

Alberta Labour Relations Code prohibit me from making any decision which would

add to, alter, modify or amend any part of the terms of the Collective Agreement

Page 37 of 51

1

70. There was an amendment to the Labour Relations Code in 2017 giving

arbitrators the power to relieve against mandatory time limits in a collective

agreement, however, that amendment was not in effect in 2011when the subject of

the Grievance arose nor in 2016 when the the Grievance was filed. Further, the

section which permitted arbitrators to relieve against mandatory time limits was

repealed by the Legislature of Alberta on July 29, 2020 and is no longer in effect.

71. Although the Collective Agreement now includes language that permits an

arbitrator to extend time limits, this did not become part of their Agreement until

November 2018. It was not in either the 2011 or 2014 Collective Agreements. The

2

011 Collective Agreement was in effect when the subject of the Grievance arose

and the 2014 Collective Agreement was in effect when this Grievance was filed and

when the Grievor’s employment was terminated in 2015. The provisions in the

current Collective Agreement which allow an arbitrator to extend time limits speaks

from the date set forth in the agreement itself and is not applied retroactively unless

expressly stipulated by the agreement. (see Brown & Beatty, Canadian Labour

Arbitration, 3rd Ed. para 4:1610).

1

72. An arbitrator in Alberta has no authority to waive or extend the mandatory time

limits set out in a collective agreement.

73. The grievance procedure provides a mechanism to address disputes arising out

of the application and interpretation of the Collective Agreement. A grievance can be

brought by either party where one or the other fails to meet its obligations under the

Collective Agreement. The grievance procedure is intended to address the problem

without any interruption in the business of the organization. Generally speaking, an

employer has no jurisdiction or authority over what employees do outside working

hours and away from the Employer’s property however off duty conduct can provide

grounds for discipline where the conduct has a direct bearing on the employment

relationship. (see Canadian Labour Arbitration , Brown& Beatty, chapter 7).

1

74. If proven, off duty criminal misconduct (including sexual assault), by a person

employed in a position of trust and responsibility, can be the basis for serious

discipline including dismissal (see University of Manitoba v. University of Manitoba

Faculty Association (M.L. Grievance) supra; British Columbia Hydro and Power

Authority v. International Brotherhood of Electrical Workers Local 258, (Termination

Grievance), supra). Whether before a judge in criminal court of an arbitrator in an

administrative tribunal, allegations of sexual assault, like any serious criminal

conduct, must be supported by clear and cogent evidence. The Grievor’s assailant

was spared the consequences of his misconduct because the Grievor was not

willing to proceed with a criminal investigation or allow the Employer to conduct an

investigation. The Employer did not doubt the Grievor’s allegations but could not

take disciplinary action against her assailant without a thorough investigation. The

Police Detective advised the Grievor that these types of actions are victim driven

and would proceed only if she wanted to do so. The Director was willing to follow the

Grievor’s instructions regarding whether the assault would be investigated and co-

Page 38 of 51

operated with her request to keep the incident confidential. The Grievor did not want

the police or the Employer to question her assailant.

1

75. As the Union’s expert pointed out, sexual violence is a unique form of trauma

because of the interpersonal nature of the crime. The interpersonal nature of the

assault in this case is complicated by the fact that the Grievor and her assailant had

formerly been in an intimate personal relationship that had ended, they had worked

together for a number of years and at the time of the assault they still worked

together. Her reasons for not allowing the Police or the Employer to conduct an

investigation into the assault were not fully disclosed but her decision not to have her

assault investigated was clear and the Police and the Employer felt obligated to

follow it.

1

76. Although her assailant was in a supervisory position, it was not alleged that his

supervisory status played a role in their former sexual relationship or in the sexual

assault. It was not alleged that the Employer was in anyway responsible for the

assault .The assault took place at the Grievor’s home when the perpetrator was

there as an invited guest and both the Grievor and the perpetrator were off duty. If

the Grievor regrets her decision not to proceed with either a criminal or civil action

against the man who committed the sexual assault, it is still open to her to do so. In

Alberta, a victim’s right to bring a criminal or civil action in the courts for a serious

sexual assault, is not time limited: the Criminal Code of Canada has no limitation

with respect to cases involving serious sexual assault and the Alberta Limitations Act

was recently amended to eliminate the limitation period for claims that relate to a

sexual assault, see section 3.1:

3

1

.1 There is no limitation period in respect of

. a claim that relates to a sexual assault or battery,

2

. a claim that relates to any misconduct of a sexual nature, other than a sexual

assault or battery, if, at the time of the misconduct,

i) the person with the claim was a minor,

ii) the person with the claim was in an intimate relationship with the person who

committed the misconduct,

iii) the person with the claim was dependent, whether financially, emotionally,

physically or otherwise, on the person who committed the misconduct, or

iv). the person with the claim was a person under disability,

1

77. I accept that the Grievor was the victim of a sexual assault, the Grievor’s

evidence as to what occurred on May 28, 2011 has not been challenged. However,

the Union is not seeking an extension of the time limits so that the perpetrator of the

assault can be prosecuted or for the Grievor to pursue a claim for damages for

injuries she incurred as a result of the sexual assault. Here, the Union is seeking an

extension of the time limits so that the Grievor can pursue a complaint against the

Page 39 of 51

Employer for comments made when the sexual assault was reported and for its

conduct in making the Grievor work with her assailant.

1

78. It was not disputed that the subject of this Grievance is appropriate for arbitration

however the Collective Agreement, which is the source of my jurisdiction, prohibits a

grievance from proceeding to arbitration if the time limits have not been followed. I

cannot ignore the very clear limitations which prohibit me from hearing a case that

was not filed within the mandatory time limits.

79. The Collective Agreement provides for time limits to be extended where the

parties agree to so in writing but that did not happen here. For me to allow this

Grievance to proceed on its merits would be contrary to the terms of the Collective

Agreement and the Alberta Labour Relations Code. The fact that this dispute

originates because of a sexual assault does not affect my jurisdiction to hear it. The

time within which a grievance must be filed is not altered by the subject of the

dispute.

1

80. The Union suggests that there is no need for me to alter, amend or vary the

terms of the Collective Agreement; I need only conclude that the trauma of the

sexual assault prevented the Grievor from becoming aware of the subject of the

Grievance until July 9, 2016. The evidence presented in the hearing does not lead

me to that conclusion.

81. Although the Union argued that the expert evidence supports this view, I do not

agree. The Expert testified that the Grievor may not have been psychologically able

to proceed with her grievance until she felt that it was safe for her to do so however

she did not say that the Grievor was not aware of the subject of the grievance or that

she was incapacitated to the point that she was not able of form an awareness of it.

There is a difference between being psychologically unable to proceed with a

grievance and being unaware of the subject of a grievance. The question I must

answer, is whether the facts and circumstances which are the subject matter of the

grievance were known to the Grievor and whether she had the mental capacity to

form an awareness of them more than 14 days before she filed this Grievance on

July 9, 2016.

1

82. I agree with the analysis of Arbitrator Koshman in a decision between these

same parties under a collective agreement that contained the same Article 29.03(a),

in Alberta and AUPE (Costuros) Re, 1999 CarswellAlta 2063 at para 59:

…

when the facts and circumstances are known to the grievor, even though the

grievor may not know they have the right to grieve or the prospects of a successful

grievance, they are at that point aware of the subject of the grievance.

83. The Grievor’s own testimony reveals that during the meeting where she advised

the Director that she had been sexually assaulted, he made the comment “put it in a

book and put the book on a shelf”. She testified that she understood that she had

two choices, meet face to face with her assailant or put it aside; “put it in a book and

Page 40 of 51

put the book on a shelf”. She believed she was being told to forget about it. The

Union Steward, who attended the meeting with her reported that the Grievor found

this upsetting and frustrating. The Union Steward described the Director’s comment

to be “very insensitive”, even “atrocious” and testified that the Grievor was

dissatisfied with the Director’s insensitivity and unwillingness “to help her out.”.

These are “the facts and circumstances” which form the subject matter of this

Grievance and I am satisfied that they became known to the Grievor and her Union

Steward at that meeting.

1

84. SH, the Union Steward who was with her at the meeting was also a personal

friend whom she had known for 20 years. The Grievor was also accompanied by

other experienced union stewards (some of whom she described as her friends)

during every subsequent meeting with the Director. The circumstances here are not

analogous to those of the sexual assault victim in M.(K.) v. M.(H.) [K.M. v. H.M.]

[

1992] 3 S.C.R. 6 which involved a child who had been abused by her step-father.

The Grievor here was supported throughout this ordeal; it began within hours of the

sexual assault and continued for several years. She received advice, support and

assistance from relatives, friends, her doctor, a psychotherapist and not less than

four union stewards.

1

85. In addition to the support she received from relatives, friends and the Union, she

received support from the Police. Male and female officers came to her residence

promptly, they took her statement without judging her and answered her questions.

They made it clear that it would be her choice whether or not the matter would

proceed. They gave her time to consider her decision and told her that if she

received any unwanted attention from her assailant she should tell him to contact

them.

86. Almost a year later, on May 16, 2012, the Grievor again contacted the Director

and in her email states “…I know you said to put it in the book and put it on the shelf,

but this is impossible for me to forget…” She has a clear memory of what the

Director said and is aware that the Employer has not taken steps to investigate the

assault or her assailant. These are the facts and circumstances of her Grievance,

as of May 16, 2012, four years before she filed this grievance she was aware of the

facts and circumstances that are the subject of this Grievance.

87. The evidence does not support the Union’s claim that this was an abusive

employment environment or that the Grievor was made to work with her assailant.

The Employer’s support began with an 18 day period of general illness leave, she

was encouraged to take advantage of counselling through an Employer sponsored

program and she received the prompt, personal attention of the most senior

manager at the ERC. The Director acknowledged that this was a very serious

matter, expressed concern over her mental health and encouraged her to seek

counselling. He discussed the Grievor’s options with her. Contrary to what the Union

said, it was the Grievor, not the Director, who expressed concern over the

consequences of reporting a co-worker to management. It was the Grievor who said

she feared being labelled a “rat.” It is noteworthy that the retribution that the Grievor

Page 41 of 51

feared was not that the Employer would reprimand or take disciplinary action, she

feared retribution from her assailant and co-workers. The Director did not dismiss

her concerns or discourage her from filing a formal complaint. He allowed her time to

consider what she wanted to do.

1

88. There is conflicting evidence with respect to what was said at the meeting but the

evidence of the Director is supported by the Grievor’s testimony at the Jolliffe

hearing and the evidence of SH, her Union Steward. She wanted to remain in her

job at the ERC, she did not want to work with her assailant. The Grievor made it

clear that she did not want her assailant or any other potential witnesses

interrogated and she did not want either the Police or the Director to conduct an

investigation of the incident. She wanted her sexual assault to be kept confidential

from her co-workers at the ERC. The Director agreed to do exactly as she wanted

and arranged for the Grievor to be assigned to a different shift than her assailant.

1

89. The Grievor says that the Director only gave her two choices; attend a mediation

with her assailant or forget about the assault and go back to work. That is not

accurate according to the evidence. From the outset she had at least four choices;

the Police advised her that investigations in sexual assault were “victim driven”, she

was aware that its was her choice as to whether the Police would proceed with a

criminal investigation. She also knew that Standing Operating Procedure 2.20.04,

required that an employee who was questioned concerning alleged criminal activity

was required to report it to the Employer which would likely result in an internal

investigation. She did not want an investigation and did not want anyone to speak

with her assailant. The Director could abide by her request but only of the allegations

of criminal conduct were not formally reported, if that happened, decisions

concerning whether there was an investigation would “go next door” to his superiors.

The Director knew that if the allegations of criminal conduct went “next door” to his

superiors, he would not be the one to decide whether the matter would be

investigated, even if the Grievor did not want that. He was willing to as the Grievor

asked; not investigate the matter and allow her to return to her job at the ERC and

be scheduled on a different shift than her assailant.

1

90. The Director gave her two choices only after she told him she was not allowing

the Police investigation to proceed and did not want the matter investigated by the

Employer. The Director understood that she did not want an investigation because

her assailant would be questioned as would others at the ERC. He understood that

she believed that an investigation would make it impossible to maintain

confidentiality and could result in her being labelled a “rat”. She wanted to remain in

her position at the ERC but not work directly with her assailant. To meet her

requests, the Director agreed to have the shift managers schedule the Grievor and

her assailant on different shifts. He understood that this was agreeable to the

Grievor and her Union Steward. He advised her that she would have to try to forget

about the sexual assault and not let it affect her work. That was in the context of his

comment that she should put it in a book and put the book on a shelf.

Page 42 of 51

1

91. As the cases show, the threshold to establish awareness of the subject of a

grievance require only that the facts and circumstances be known to the employee.

(see Alberta and AUPE, Re, 1988 CarswellAlta 849 (McFetridge) para 18; Alberta

and AUPE (Jensen), Re ,1991 CarswellAlta 983 (Koshman) at para 59; Alberta and

AUPE (Costturo), Re, (Koshman) supra at para 22). That threshold was met in

June/July 2011or at the latest May 16, 2012.

92. It is significant that during this time the Grievor was not isolated, alone, without

access to resources or ignorant of the options available to her. She was

accompanied by a union steward at every meeting, her union steward was copied on

many of the emails she sent to the Director. A union steward was there with her in

the meeting when the Director made the comments that are the subject matter of

this Grievance.The conduct that has become the subject matter of this grievance

occurred at the first meeting and was known to the Grievor and her Union Steward

at that time. The evidence is clear that filing a grievance was not considered. This is

likely because the Grievor and her union steward were agreeable to the Director’s

proposed solution. They agreed that the Employer would not to conduct an

investigation, that the Grievor would return to her job and would not work on the

same shift as her assailant. Her Union advisors knew the importance of filing a

grievance in a timely manner. Even if the prospects of a successful outcome were

unknown to them, they were all aware of the facts that later became the subject of

the grievance.

1

93. Furthermore, if as the Expert suggests, she was not ready to proceed,

arrangements could have been made to extend the time limits in writing or the

grievance could have been filed and placed in abeyance until she was able to

proceed. There was evidence that in the past, the parties have agreed to place a

grievance on hold in circumstances where a grievor was not able to proceed to a

hearing. Here, there was no attempt to extend the time limits in writing and no

arrangements made to hold the Grievance in abeyance until the Grievor was able to

proceed. The reason there was no attempt by the Union to extend the time limits is

because, as the Director testified, there was no thought that this was matter might

become a grievance. There was no thought to a grievance because the Grievor was

not asking for anything that the Employer was unable or unwilling to provide. She did

not want an investigation, she wanted to return to her job and she did not want to

work with her assailant. The Employer was willing to accommodate these requests.

1

94. Contrary to what the Union suggests, this was not an abusive employment

relationship and I do not accept that it can be considered analogous to the

relationship of an abused wife or child. As noted above, she was not isolated or

alone, she had the support of relatives, friends, her doctor, a psychotherapist and

her Union. The Director, the most senior manager at the ERC met with her and was

sympathetic to her circumstances, gave her his immediate attention and responded

promptly when she expressed her concerns. He worked with her and her union

steward to find a solution that met her expressed desire to remain in her job at the

ERC, not work with her assailant but not have her assailant or the incident

investigated.

Page 43 of 51

1

95. There was no evidence that the trauma of the sexual assault or an abusive

employment relationship prevented her from becoming aware of the subject of the

grievance. The Union says that she did not become aware of the subject of the

Grievance until her employment was terminated on July 9, 2016. Although the

Expert suggested that if the Grievor felt unsafe it might explain her failure to file a

grievance, the Expert didn’t meet the Grievor until six years after the subject matter

of the Grievance arose and had no contemporaneous knowledge of the Grievor’s

state of mind during the relevant period. Furthermore, the Expert ’s opinion was

based on facts not in evidence, it was not an abusive relationship and the Employer

did not “make her” work with her assailant. The Director was sympathetic, attempted

to accommodate the Grievor, made reasonable efforts to ensure that she did not

work with her assailant and responded immediately when he learned that there was

a problem.

1

96. The Union argued that the Grievor was unaware of the subject of this grievance,

but that was not the Grievor’s evidence. Her testimony shows that she was aware of

the subject of the Grievance. She did not say that she did not understand his

comments. When asked why she did not file her Grievance earlier, she testified that

she was too scared, that she did not want to lose her job. She claimed that she was

told that she had to work with her assailant and it was only after her employment

was terminated that she felt that it was safe to file this Grievance. The evidence

does not support her testimony. There is no evidence that she had reason to believe

that she would lose her job if she refused to work with her assailant. The evidence is

that the Employer made reasonable effort to keep her away from her assailant and

agreed to schedule them on different shifts. The February 22, 2012, emails show

that when she complained to the Director that she’d been twice schedule to work

with her assailant, he acknowledged that this had happened in error and explained

that the shift manager had not been advised of the reasons they were to be kept

apart. He proposed that they “get together to discuss these concerns regarding any

new directions you feel may be necessary” At their meeting he agreed to speak to

the shift manager to ensure it did not happen again.

1

97. Her conduct following the assault demonstrates that she was aware of her

circumstances and was capable of assessing the options available to her. She

explored the consequences of proceeding with a criminal investigation. She

disclosed to the Police that some of the texts she sent to her assailant after the

assault were strategic in nature to test his reaction. She asked the Police what would

happen if charges were laid against her assailant and was told that if he plead not

guilty she would probably have to testify at a trial, she asked the Director what would

happen if she filed a formal complaint and shared her concerns about the possibility

of being labelled a “rat”. She decided that she did not want to risk the consequences

of either a criminal investigation or a formal investigation by the Employer. She did

not want anyone to speak with her assailant. The evidence suggests that her fears

were not because of anything the Employer might do but rather how her assailant

and her co-workers might react. It appears she was able to overcome her fear of

being ostracized by her co-workers because a year before she filed this Grievance,

she filed a Respectful Workplace Complaint against another of her supervisors

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(CPO111) who she said was harassing her because she had rebuffed his sexual

advances.

1

98. The Collective Agreement says that the time starts to run when the employee

becomes aware of the subject of the grievance. It does not say that the time begins

to run when the employee becomes capable of proceeding with a grievance. A

grievor’s subjective readiness to proceed is not what triggers the time to start

running. If filing a grievance could be delayed until the grievor was ready to proceed,

the time limits in the Collective Agreement would be meaningless.

99. I will comment on some of the other cases relied on by the Union:

a. R v Seyboyer and R v Gayne [1991] 2 S.C.R. 577 deal with important

issues in criminal law involving sexual assault and specifically the “rape

shield” provisions of the Criminal Code of Canada (ss. 276 and 277). The

accused argued that prohibiting cross examination of a victim on her sexual

history and excluding evidence of sexual reputation for purposes of

challenging or supporting credibility, infringed on fundamental principles of

justice and the accused’s right to a fair trial.

In the Grievance before me now there was no challenge to the Grievor’s

credibility with respect to the sexual assault. The Grievor’s version of the

sexual assault was the only evidence received on that topic and it was not

challenged. She was not questioned regarding her sexual history or her

sexual reputation for the purpose of assessing her credibility. The credibility

of the Grievor was an issue with respect to her discussion with the Director of

the ERC in 2011 but it was recognized that her sexual history and reputation

is irrelevant to issues of credibility.

b. R v ADG 2015 ABCA 149 (ACA) is also a criminal case, it involves

allegations of sexual assault by a child who did not disclose the abuse until

she was an adult. The accused challenged the credibility of the victim based

on her failure to promptly disclose the sexual assault. The Crown argued

that delay in disclosing a sexual assault, standing alone, was not an

appropriate consideration in assessing credibility and that the law is clear

that no presumptive adverse inference may be drawn from failure to

disclose sexual assault, particularly in children. At trial, the accused was

acquitted based on the Judge’s expectation of how a child would react to the

abuse. The ACA overturned the Judge’s decision holding that it cannot be

assumed that sexual assault victim’s will react to abuse in any objectively

identifiable way.

The Union says that here the Grievor’s delay in filing this grievance is

analogous to the child’s delay in R v ADG, in disclosing the sexual assault

and cannot be used to discredit the accuracy of her version of the meeting

with the Director. The question concerning which “no presumptive adverse

inference may be drawn” is whether a delay in the disclosure of a sexual

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assault is relevant in assessing the victims credibility as to whether the

sexual assault occurred. That question is not in issue here. The Grievor’s

evidence concerning the sexual assault has been accepted throughout, it

was not questioned or challenged either by the Union, the Police or the

Employer. Furthermore, there was no delay in her disclosure of the sexual

assault. The Grievor reported the sexual assault to the Sturgeon Hospital the

very next day and to the EPS with full particulars soon afterward. Clearly the

trauma of the sexual assault did not cause a significant delay in the Grievor ’s

reporting the assault. The Grievor’s credibility with respect to the sexual

assault is not in issue.

There are issues of credibility but not because the Grievor failed to file this

Grievance within the agreed time frame. The credibility issues arise from the

the fact that the Grievor’s evidence as to what was said in her meeting with

the Director is in conflict with the evidence of the Director and also with the

evidence the Grievor gave in the the hearing concerning her termination and

the testimony of SH, the union steward who was not called by the Union but

who did testify at the Grievor’s termination hearing. The Grievor’s credibility

with respect to what was said at the meetings with the Director is not being

assessed on the basis of discredited myths and stereotypes or biased,

prejudicial and irrelevant evidence, it is being assessed on the basis of the

usual test set out in the case of Farina v. Chorny [1952] 2 D.L.R. 354 :

The credibility of interested witnesses, particularly in cases of conflict of

evidence, cannot be gauged solely by the test of whether the personal

demeanour of the particular witness carried conviction of the truth. The

test must reasonably subject his story to an examination of its consistency

with the probabilities that surround the currently existing conditions. In

short, the real test of the truth of the story a witness in such a case must

be its harmony with the preponderance of the probabilities which a

practical and informed person would readily recognize as reasonable in

that place and in those conditions.

The Grievor’s conduct following the meeting was consistent with the

Director’s evidence. According to the Director, both the Grievor and her

Union Steward (SH ) agreed with his proposal that the Grievor remain in her

job at the ERC, that the incident be kept confidential and that the Director

arrange for the Grievor to be scheduled on a different shift than her assailant.

For the remainder of the Grievor’s employment with the ERC, this is what

happened. She remained in her CPO 11 job at the ERC, she was not

scheduled to work with her assailant and was able to perform her duties in a

satisfactory manner. The Director’s version of the meeting is that the

accommodation offered was accepted by the Grievor and her Union Steward

and is consistent with what happened over the next several years. Although

there were instances where errors were made in the scheduling, these were

corrected when brought to the Director’s attention. After the ERC moved to a

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different facility and her assailant moved to a different job, she saw him more

often but there was no evidence that she was required to work directly with

him or was supervised by him. Her only complaints were that she saw him in

an elevator, that he sat behind her once at muster and that it bothered her

when she saw his car in the parking lot. The Director’s version is consistent

with the surrounding material circumstance and more probable than the

Union’s claim that the Grievor was so upset as a result of the sexual assault

that over an extended period of time she was not mentally competent to

understand and form an awareness of the subject of her grievance.

c. The Union referred to British Columbia Hydro and Power Authority v.

International Brotherhood of Electrical Workers, 258 (Termination Grievance)

[

2020] B.C.C.A.A.A. No. 78 (B.C. Hydro) a case where the time limits for filing

a complaint under a Respectful Workplace Policy (RWP) were extended in

circumstances where the complainant had delayed filing her complaint for 2.5

years. The case has limited value as a precedent here because the Arbitrator

concluded that the time limit under the RWP was discretionary and not

mandatory (at paras 32 - 33):

3

2 In my view the limitation period in the RWP was discretionary and not

mandatory. The limitation is set out as follows:

An employee can submit a request for an investigation up to six months

after attempting to resolve a situation involving potentially disrespectful

behaviour. (RWP, p. 10)

3

3 The limitation is set out in the internal investigation section of the HRP

and it is not set out in mandatory language, forbidding an investigation

after six months. There is no limitation period expressed under the

external investigation section of the HRP. Clearly both parties expect that

the spirit of the Code should be honoured and generally timeliness is

important.

d. Similarly, in the case of The University of Manitoba v. University of Manitoba

Faculty Association (M.L. Grievance), [2008] M.G.A.D. No. 36 has limited

precidential value because the limitation period was discretionary and not

mandatory. At para 267 - 270 the Arbitrator stated:

2

67 The Union argues that the grievance should succeed on the basis that

D.J.'s complaint was made outside the one year limitation in the

University's Policy, and further that the University's investigation failed to

find that there were extenuating circumstances such as to override the

limitation.

2

68 In support of its position, the Union relies of a line or cases decided

under human rights legislation where complaints filed outside the time

limits in the legislation were ultimately dismissed.

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2

69 …A major difference is that the University's Policy is one adopted not

by agreement, but unilaterally, and not put into force pursuant to provincial

or federal legislation. As the University pointed out, a decision made under

the terms of the Policy would not be normally subject to judicial review.

2

70 The Policy did contemplate extensions of time for extenuating

circumstances.

The Arbitrator concluded that there were extenuation circumstances which

warranted an extension of the time limits. He considered those circumstances

and upheld the discipline imposed. Here, in Article 29.07(a) of the Collective

Agreement the parties have stipulated that the time limits in the grievance

procedure are mandatory and that failure to pursue a grievance according to the

prescribed time limits and with the prescribed procedures shall result in

abandonment of the grievance. Furthermore, in Article 29.05(b) arbitrators are

expressly prohibited from adding to, altering, modifying or amending any part of

the terms of the Collective Agreement which is reinforced by Section 142(1) of

the Alberta Labour Relations Code.

Continuing Grievance

2

00. I do not accept the Union’s alternative argument that this is a continuing

grievance. I am guided by the principles set out in Cameron v Deputy Head (Office

of the Director of Public Prosecutions), 126 C.L,A,S. 19, 2015 CarswellNat 8737 at

para 115:

A continuing grievance, very briefly, is based on a repeated breach of the

collective agreement that is grieved at one point. … The complaint was never

solved, but it was related to a specific event…”

And also by U.G.C.W., Local 246 v Dominion Glass Co. 1973 CarswellOnt 893(CA)

at para 8:

As to the third question upon which leave was granted, we are all of the view

that the Board reached the right result and that this was not the subject matter

of a continuing violation. The grievance had to do with action taken by the

company on a specific occasion and while the consequences may have been

continuing, the violation was embraced in the particular action taken by the

company in mid-October.

2

01. As is evident from the wording of the Grievance, there was a single precipitating

act which is the subject of this Grievance; it arose at the Director’s first the meeting

with the Grievor where he commented; “put it in a book and put the book on the

shelf” and the Grievor formed the belief that she either had to mediate the dispute or

forget about its and work with her assailant. The meeting took place in late June or

early July, 2011. At that meeting, the Director agreed to permit her Grievor to

continue in her job at the ERC and arrange for her to be scheduled to work on a

different shift than her assailant. He also agreed not to conduct an investigation.

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This decision continued to affect the Grievor throughout the remaining period of her

employment. Although there were isolated instances where the scheduling was did

not go according to plan, when problems were brought to the Employer’s attention,

steps were taken to address them.

2

02. The Union argued that the Employer’s failure to conduct an investigation

continued over an extended period of time but the evidence is that the Employer did

not conduct an investigation because that was the Grievor’s request. In any event,

not conducting an investigationt is the consequence of a decision that was made at

the latest in February 24, 2012. It does not make this a continuing grievance. I have

no jurisdiction to hear a Grievance that was not filed within the mandatory time limits

set out in the Collective Agreement.

Estoppel and Waiver

2

03. I will briefly address the Union’s Estoppel and Waiver arguments. According to

the Union, the Employer made representations that the Grievor reasonably believed

extended the time within which she could file a grievance. The alleged

representations are as follows:

a.. At the first meeting the Director advised the Grievor that she need not

proceed now with the this matter and could “put it in a book on a shelf and

forget about it.”

b. On February 22, 2012, the Director emailed the Grievor to see if she had

changed her mind with respect to how to proceed and;

c. In the February 24, 2012 meeting the Director said “we don’t want this to go

next door” and suggested that he would get back to her.

2

04. The Director’s comments at the first meeting were not made in reference to or

with the intention of extending the time limits associated with filing a grievance. The

purpose of the meeting was to determine what the Grievor wanted to do following

the sexual assault. She was returning to work after being off for 18 days on general

illness leave; she’d had an opportunity to discuss her situation with her sister, the

Police, a select few friends and co-workers and her Union. The Employer was

attempting to determine how she wanted to proceed and was willing to co-operate to

the degree possible. The Director testified that the meeting was not confrontational;

the Employer was not asked to do anything they were unwilling to do. There was no

thought that this matter would become a grievance. He was willing to allow the

Grievor time to consider her options. Allowing her time to consider her options had

nothing to do with the time limits for filing a grievance. There was no thought or

intention that this would affect the parties legal relations.

2

05. Similarly, the communication on February 22 , 2012 had nothing to do with the

grievance procedure, he contacted her to confirm that she still wanted to return to

her job at the ERC and did not want to have the sexual assault investigated. His

comments at the February 24, meeting that “we don’t want this to go next door”

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cannot be construed as a representation with respect to the time limits for filing a

grievance. If the Grievor or the Union perceived this to be a refusal to proceed with

an investigation contrary to the Grievor’s rights under the Collective Agreement, they

should have filed a grievance. Similarly, if the Director did not deliver on his

commitment that he would get back to them was in breach of the Employer’s

obligations under the Collective Agreement, that too is something that might have

prompted a grievance. It did not extend the time within which this Grievance was

required to be filed.

2

06. The Union relied on Abitibi Consolidated Inc v Industrial Wood and Allied

Workers of Canada, Local 1-424, (supra) to argue that the law of estoppel has

evolved to the point where it essentially comprises a simple question: Has the party

evoking the statute unequivocal affirmed the contract in circumstances making it

unfair or unjust for him to resile from that contract? Although I do not believe that this

is an accurate statement of the law, even if were true, here he Employer’s reliance

on the limitations in the Collective Agreement for filing a grievance is not unfair or

unjust. Nothing the Employer did or said could reasonably be construed as altering

the parties legal relationship or the time limits for filing a grievance under the

Collective Agreement. I note that the Union’s argument was not supported by any

testimony from the Grievor or any Union representative that they understood that the

time limits for filing a grievance had been relaxed or extended.

2

07. The notes taken by the Union Steward, JH, in the February 24, 2012 meeting

indicate that the Grievor said “he (her assailant) should be moved and investigated”.

At first glance this appears to be a departure from the Grievor’s earlier decision to

avoid an investigation however when we look at the Grievor’s email of February 22,

2

012, an alternative explanation appears more probable. In her February 22, 2012

email she says she has two issues, the first is that she had been scheduled to work

with her assailant a second time and that it was traumatic. The second issue

concerns her assailant’s use of a false name when meeting women and that some

female inmates have disclosed this to the staff and many inmates. The second

paragraph of her email states as follows:

Second off these female inmates are well aware of this CPO111 and his alter ego.

They have told many staff & and (sic) many inmates. I am well aware of this and

the whole story and I know it to be true due to what transpired with me. This whole

(“alias”) story is very well known up here, and very well known to me.

2

08. In her email the Grievor is reporting to the Director that she has additional

information confirming her assailant’s use of a false name. She believed and infers

in her email that he had sexually assaulted other women, similar to what transpired

with her (see Expert report at page 4). When she told the Director that “he should be

moved and investigated”, it is likely that it is his use of a false name and conduct

with these women that she wanted investigated. It appears that she believed that

she’d uncovered information about her assailant’s off duty conduct that was relevant

to his continued employment at the ERC. What her Union Steward may not have

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known is that the Director had already responded to this part of her complaint. He

replied on February 22, 2012, less than 2 hours after receiving her email:

As for the (“alias”) story, it has been addressed on an official level.

At the hearing the Director testified that the (“alias”) matter had been addressed and

there was nothing that warranted action by the Employer. It appears that this was not

a situation where the Director was refusing to investigate her assailant’s off duty

conduct but rather had already done so.

DECISION

2

09. Having considered the evidence and argument, I have concluded that this

Grievance was not pursued in accordance with the time limits prescribed in the

Collective Agreement. Those time limits were not extended by written agreement

between the parties and I have no authority to extend the time limits or otherwise

add to alter or amend the terms of the Collective Agreement. I do not have

jurisdiction to hear this Grievance and it cannot proceed.

Dated at Calgary, Alberta this 29th day of May, 2022.

W.D. McFetridge Q.C.

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