HomeMy WebLinkAbout1986-1268.Kerfoot and Miles.93-07-21Between:
IN THE MATTER OF ARBITRATION
under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Kerfoot & Miles)
Grievers
and
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
Before: M.G. Mitchnick
.I. Freedman
F.T. Collict
For the Grievor: C. G. Paliare
Counsel
Gowling and Henderson
Barristers and Solicitors
For the Employer: M. Farson
Counsel
Sanderson, Laing
Barristers and Solicitors
Hearing: December 2, 1987
Vice Chairman:
Member
Member
DECISION
I The Union brings before the Board the grievances of
Judy Kerfoot and KarenMiles, each of whom took leave ~of absence
pursuant to the provisions of Article 51 ("Adoption Leave") of
the collective agreement. Each grievor claims that she is
entitled to supplementary income "top-up" of her Unemployment
Insurance benefits as well as the continuation of insured
benefits provided under Article~'45 of the collective agreement,
in the same way as these advantages are conferred on enployees
taking "Maternity Leave" under Article 50 of the collective
agreement. At the hearing, counsel for the Union also raised
the fact that employees taking "Maternity Leave" under Articie 50
of the collective agreement are entitled if they wish to a
further period of 6 months' unpaid leave at the conclusion of the
initial ll-week period, whereas employees like the,grievors
qualifying for Adoption Leave under Article 51 are not.
The two Articles in question provide:
Article 50 - Maternity Leave
50.1 A Deputy Minister shall grant leave-of-
absence without pay and without accumulation
of credits for the purpose of childbirth to a
female employee who has served more than one
(1) year including service as a Crown
employee immediately prior to her appointment
to the civil service.
/50.2 The leave-of-absence shall be in accordance
with the provisions of The Employment
Standards Act.
50.3.1 An employee entitled to maternity leave under this Article, who provides the Employer witn
proof that she has applied for and is
eligible to receive unemployment insurance
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benefits pursuant, to Section 30, Unemployment
Insurance Act, 1971, shall be paid an
allowance in accordance with the
Supplementary Unemployment Benefit Plan.
50.3.2 In respect of the period of maternity leave,
payments made according to the Supplementary
Unemployment Benefit Plan will consist of the
following:
(a) for the first two (2) .weeks, payments
equivalent to ninety-three percent (93%)
of the actual weekly rate of pay for her
classification, which she was receiving
on the last day worked prior to the
commencement of the maternity leave,
and
(b) up to a maximum of fifteen (15) additional weeks, payments equivalent to
the difference between the sum of the
weekly UI benefits the employee is
eligible to receive and any other
earnings received by the employee, and
ninety-three percent (93%) of the actual
-weekly ra?e of pay for her
classification, which she tias receiving on the last day worked prior to the
commencement of the maternity leave.
50.3.3 Notwithstanding 50.3.2(a) and (b), where an
employee assigned to a vacancy in accordance
with Article 18.7.2 (Health and Safety-
VDT's) is eligible to receive an allowance
under this Article, and the salary rate she
was receiving on the last day worked prior to
the maternity leave is less 'than the salary
rate she was receiving on the last day worked
pr,ior to the assignment, 'the allowance shall
be based on the actual weekly rate of pay for
classification whjch she was receiving on the
last day worked prior to the assignment.
50.4 Notwlthstanding Article 45.2 (Insured
Benefits Plans - General)., an employee
receiving the maternity leave allowance under
the Supplementary Unemployment Benefit Plan
shall have her benefits coverage continued
during the period she receives the maternity
leave allowance.
50.5 If requested, in writing, at least four (4)
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weeks prior to the date of expiry of her
maternity leave, an employee shall be.
entitled to a leave-of-absence without pay of
up to six (6) months.
50.6.1 A female employee returning from a leave-of-
absence under section 50.1 or 50.5 to the
ministry in which she was employed
immediately prior to such leave shall be
assigned to her former classification and be
paid at the step in the salary range that she
had attained when the leave-of-absence was
granted.
50.6.2 Notwithstanding Article 50.6.1, an employee
who has been assigned in accordance with
Article 16.7.2 and who returns to her former
ministry from a.leave-of-absence under this
Article, shall be assigned to a position in
the same classification as the position she
occupied immediately prior to the assignment
under Article 10.7.2 and be,paid at the step
in the salary range that she had attained
immediately prior to the assignment under
Article 16.7.2.
50.7 Notwithstanding- 50.3.2(a) and (b). and
50.3.3, effective January 1, 1984, the
Supplementary Unemployment Benefit shall be
based on the salary the employee was
receiving on the last day worked prior to the
commencement of the maternity leave,
including any retroactive salary adjustment
to which she may become entitled.
Article 51 - Adoption Leave
51.1 An employee who has served more than one (1)
year, including service as a Crown employee
immediately prior to appointment to the civil
service shall, upon application; be granted
by the Deputy Minister leave-of-absence
without pay and without accumulation of
credits of up to seventeen (17) weeks for the
adoption of a child.
and the Emolovment Standards Act provides, particularly in
sections 35,and 36:
Sec. 35
Sec. 36
, .
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Pregnancy leave
No employer shall terminate the employment of
or lay off an employee who is entitled to a
leave of absence under section 36, but the
employer may require the employee to commence
a leave of absence pursuant to section 36 at
such time as the duties of her position
cannot reasonably be performed by a pregnant
woman or the performance of her work is
materially affected by the.pregnancy.
(1) An employee who is pregnant and who has
been employed by her employer for a period of
at least twelve months and eleven weeks
immediately preceding the estimated day of
her delivery, whether such employment
commenced before or after the coming into
force of this Act, shall be entitled upon. her
application therefor. to a leave of absence of
at least seventeen weeks from her employment
or such shorter leave of absence as the
employee may request commencing durin,g the
period of eleven weeks immediately preceding
the estimated day of her delivery.
(2) 'Notwithstanding -subsection (1) and
subject to subsection (5). where the actual
date of her delivery 'is later than the
estimated day of her delivery, the leave of
absence shall not end before the expiration
of six weeks following the actual date of her
delivery.
(3) The employee shall give her employer two
weeks notice in writing of the day upon which
she intends to commence her leave of absence
and furnish her employer with the certificate
of a legally qualified medical practitioner stating that she is pregnant and giving the
estimated day upon which delivery will occur
in his opinion.
(4) Subject to subsection (5) an employee
may. with 'the consent of her employer,
shorten the duration of the leave of absence
requested under subsection (1).
(5) An employee may shorten the duration of
the six week period mentioned in subsection
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(2) upon giving her employer one week’s
notice of her intention so to do and
furnishing her employer with the certificate
of a legally qualified medical practitioner
stating that she is able to resume her work.
The Union does not dispute that the two Articles .that it has
negotiated do in fact provide for the complained-of difference in
treatment; the Union calls upon the Board to eliminate these
differences, however, on the ground,that they constitute a
violation of section 15 of the Canadian Charter of Riohts.
Section 15 provides:
Squality before 15.(l) Every individual is equal.before
and under law and under the law and has the right to
and equal the. equal protection and equal benefit of
protection and the law without discrimination and, in.
benefit of law particular, without discrimination based on
race, national or ethnic origin, colour,
religion, sex, age or mental or physical
disability.
Affirmative (2) Subsection (1) does snot preclude any
action law, program, or activity that has as its
programs object the amelioration of conditions of
disadvantaged individuals or groups
including those that are disadvantaged
because of race, national or ethnic origin,
colour, religion, sex, age or mental or
physical disability.
In addition section 1 of the Charter provides:
Rights and 1. The Canadian Charter of Rights and
freedoms in Freedomeguarantees the rights and freedoms
Canada set out in it subject only to such
reasonable limits prescribed by law as can
be demonstrably justified in a free and
democratic society.
And section 52(l) provides:,
Primacy of 52. (1) The Constitution of Canada is the
Constitution supreme law of Canada, and any law tnat is
of Canada inconsistent with the provisions of the
Constitution is, to the extent of the
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, inconsistency, of no force or effect.
Prior to the hearing the Union served notice on the government
employer as well the Attorneys-General of the Province of Ontario
and of the Government of Canada that:
The Ontario Public Service Employees Union intends to
question the constitutional validity of Articl,es 50 and
51 of the Collective Agreement between the Management
Board of Cabinet and Ontario Public Service Employees
Union, dated January 1, 1966 to December 31, 1986.
It is) conceded ,by the employer that this case involves a
government actor, to which the provisions of the Charter o:
Rights could apply; however, the employer takes the position that
the particular activity involved, namely,. the negotiation with
the .Union of a collective agreement, is not the kind of
government action to which the Charter has applicatioc. In
addition, the employer argues:
1) that there is no "'discrimination", within the
meaning of section 15(l) of the Charter;
2) that even if there is, this particuiar
"discrimination" is permitted by section 15(2) of
the Charter; and
3) that in any event allowing scope to the parties to
a collective agreement to negotiate these kinds of
distinctions is necessary and demonstrably
justifiable in a free and democratic society;
4) that the Board, in addition, would have no
jurisdiction to grant a remedy which, in effect,
would be to add benefits to the collective
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agreement beyond those that have been negotiated
by the parties.
A good deal of time was spent by counsel on the initia;
question of the applicability of the Charter to the instant
collective agreement to which the government is a party. That,
~however,~ is an issue of obviously widespread consequences, and,
in light of the view that we take of the application on its
"merits", is not a question that we find necessary and therefore
appropriate to comment upon in this decision. Simply assuming,
therefore, that the Charter could be said to apply to the
situation before us, we turn to the arguments addressed to us
under sections 15 and 1 of the Charter.
In the recent Supreme Court reference concerning the
Ontario Provincial ~Police (Reasons for Judgment released November
16, 1987), Mr. Justice Rosenberg at page 16 sets out the four-
fold test for the analysis of a section 15 issue as follows:
(1, Identify the class or classes of persons who are
said to be treated differently.
(2) Determine whether the classes are similarly
situated.
(3). Determine whether one of the classes is subject to
discriminatory distinction.
(4) Determine the applicability of s.l of the Charter.
The judgments of the various courts emphasize, however, that ,
these tests are simpler to state than to apply - in particular
with respect to the appropriate test to be applied to the term
"similarly situated", and the meaning to be given to the word
"discrimination" within the context of section 15(l). PO?
example, Lacourciere, J.A., noted in Her Majestv The Queen v.
Josenh Ertel, a decision of the Ontario Court of Appeal released
June 3, 1987, at page 33:
The following step Sn a s.15 analysis, again following
Ramos, is to determine whether these classes are
"similarly situated", using the language adopted by
Morden J.A. in Re McDonald and The Queen (1985), 2:
C.C.C. (3d) 330 at 349. The importance of the rule that "those who are similarly situated be. treated
similarly" is that, ,as demonstrated in this Court's
decision in Breqman and Breqman v. Attorney-General of
Canada, released November 26, 1986, if the classes identified are not similarlv situated. it would seem
that there 'can be no violation of s-15. When proceeding with this analysis one must heed the caution
given by this Court in Ramos at pp.26-27; that the
differences among those being treated ditferently ay
the law must be relevant for the purposes of that
legislation.
Or as it was put in the Ramps case itself (Reqina v. Century 21
Ramos, Realtv Inc. (1987), 56 O.R. (2d) 737 (Ont. C.A.)) , at 756:
Applying this approach, the determination of whetner
two or more particular classes of persons are in fact
similarly situated becomes the analytical point of
departure in any s.15 analysis. It might seem that i:
persons are held not to be similarly situated, then no
further analysis is required. However, it is not
always clear whether persons are or are not similarly
situated, and whether, even if they are not, this is relevant to a 9.15 inquiry.
It is necessary to be cautious in this classification.
It is usually possible to find differences between
classes of persons and, on the basis of these differences, conclude that the persons are not
similarly situated. However, what dare perceived to be
significant "differences" between persons or classes of
persons could be the result of stereotypes basec on
existing inequalities which the equality provisions of
the Charter are designed to eleminate, not perpetuate.
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There were, further, some initial suggestions that to
come within the protection of section 15 a party need only show
that treatment was "unequal", and that the question then became
whether that unequal treatment could be justified under section
one ; that approach has now been firmly rejected by Ontario
courts, however. In Ramos Realty, sunra, the Court of 'Appeal at
page 761 notes with approval the following excerpt from Ke
Andrews and Law Society of British Columbia (1966), 27 D.L.R.
(4th) 600 (B.C.C.A.):
Second, such an approach deprives the phrase "without
discrimination" of content; provided the treatment is
unequal, one passes immediately to s.1 of the Charter.
That would run counter to accepted canons of statutory
interpretation. Hwg n supra, p.800, acknowledges this
problem, but says because "discrimination' is ambiguous
and can be read in a "neutral sense", it should be taken to remit the entire question of justification to
s.l. I cannot accept that view. "Discrimination" must
be taken to have meaning within s.15 itself.
And.-further from that case:
It cannot have been the intention of Parliament to
guarantee a general right against unequal treatment.
Almost all statutes draw distinctions between
individuals. It cannot be supposed that in all sucn
cases, the individual's constitutional rights are
infringed. To call every legislative distinction
bet.ween people an infringement of s.15 is to trivialize
the fundamental rights .guaranteed by the Charter.
Or as the Court notes at page 761 in the following excerpt from
the Federation Act Reference (1966) 53 O.R. (2d) 513, 554:
Most laws provide for distinctions and prescribe different results based on those distinctions. Indeed,
a State could not function without classifying its citizens for various purposes and treating some
differently from others. As Mr. Justice Stewart
pointed out in his discussion of the equal protection
ciause of the. U.S. Fourteenth Amendment in San Antonio
school District v. Rodrisuez (1973). 411 U.S. 1 at
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p.60: "There is hardly a law on ~the books that does
not affect some people differently from others."
Similarly, although spoken in a different context,
Chief Justice Dickson said at p.347 S.C.R., p.362
D.L.R. of Biq M Druq Mart Ltd., supra IR. v. Big M Drug
Mart Ltd. (1985), 18 D.L.R. .(4th) 321, 18 C.C.C. (3d)
385, [1986] 1 S.C.R. 2951, "...the .interests of true
equality may well require differentiation in
treatment".
The word "discrimination", as it is used in section 15 of the
Charter, therefore, has been determined by the courts to mean
only discrimination in the "pejorative" sense, just as the courts
had earlier done in considering the meaning of "equality" In
section l(b) of the Canadian Bill of Rights, which articulated
"the right of the individual to equality before the law and the
protection of the law". As noted in Ertel supra, , for example,
at page 29, Mr. Justice Dickson, as he then ~was, wrote in Mackay
v. The Queen (1980) 54 ,C.C.C. (2d) 129 (S.C.C.), at 158:
Equality in this context must not be synonymous with
mere universality of application. There are many
differing circumstances and conditions affecting
different groups which will dictate dif.ferent
treatment.
His Lordship then continued:
The question which must be resolved in each case is
whether such inequality as may be created by
legislation affecting a special class -- here the
military -- is arbitrary, capricious or unnecessary, or
whether it is rationally based and acceptable as a
necessary variation from the general principle of
universal application of law to meet special conditions
'and to attain a~ necessary and desirable sociai
objective... It would be difficult, if .not impossibie,
to propound an all embracing test to determine what
departures from the general principle of the equal
application of law would be acceptabie to meet a
desirable social purpose without offence to the Canadian Bill of Riqhts. I would be of the opinion,
however, that as a minimum it would be necessary to
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inquire whether any inequality has been created for a
valid federal constitutional objective, whether it has
been created rationally in the sense that it is no?
arbitrary or capricious and not based upon any ulterior
motive or motives offensive to the provisions of the
Canadian Bill of Rights, and whether it is a necessary
departure from the general principle of universal
application of the law for the attainment of some
necessary and desirable social objective...
Similarly, see Re Jamorski (1987), 38 D.L.R. (4th) 80 (Ont.S.C.1,
at 93.
Applying all of this to the case at hand, Mr. Paiiare
on behalf of the Union and its adopting members submits'that the
distinction drawn in the parties' collective agreement between
"natural moms" and "adoptive moms" is indeed unreasonable,
capricious, and offensive, and that, while certain differences
obviously do exist between the two groups, those differences are
in no way of ,such a magnitude as would justify the current
differences in treatment. Mr.~ Paliare points out that the
actual physical incapacity of the "natural moms" is generally
confined to the period in relative proximity to the actual event
of childbirth, does not extend to the full period of 17 weeks for
which leave is provided, and certainly not to the additionai
period of 6 months for which only the "natural moms" are given
the right to request further leave. The bulk of, the time otf
therefore, Mr. Paliare' submits, must be seen as simply a
recognition of time off for the parent to deal with the
difficulties inherent in adjusting to the introduction of a new
member into the family, and of dealing with the critical perloc
of "bonding". And from that point of view, Mr. Paliare argues.
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~lo difference exisw between the "adoptive" and "natural" parent
which could conceivably justify a difference in the amount of
time off available, or in the maintenance of income and benefit
levels. In fact, argues Mr. 'Paliare, on the question of income
needs there may be costs associated with the adoption proces~s,
and particularly the private-adoption process, which are not a
factor for couples in a position to benefit from the natural
process of childbirth. With "would-be" parents more and more
turning to adoption as a necessary result of infertility or other
health problems, or simply in order to provide an opportunity for
a better life to, for example, refugee children, the time has
come, Mr. Paliare submits, to eliminate this invidious and
"discriminatory" distinction drawn between the two groups.in
Articles 50 and 51 of the collective agreement, and to "reaa
down" the provisions of Article 50 so as to include "adoptive
moms" within its purposive intent. If there are problems witn
the Board's remedial jurisdiction to do that, Mr. Paliare submits
that at the very least the .Board ought to declare the
discrepancies in Articles 50 and 51 to be unconstitutional, and
tom direct the matter back to the parties to address. His
attention drawn to the fact that the Union over the years has
been at least an equal party to the negotiation of the
distinctions he now describes as invidious and offensive, Mr.
Paliare responds that .the Charter applies only to "government",
and that the government was given three years from the Charter's
effective date of April 17, 1982, to turn its mind to what
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provisions in its "laws" were unconstitutional, and should have
refused to enter into the current collective agreement [effective
January 1, 19861 which maintains the present instance of
discrimination.
Ms. Farson, on behalf of the government employer,
presented submissions which were equally sophisticated and
comprehensive, but which, for the purposes of this decision, may
be capsulized as follows: there are in fact physical problems
associated with the process of pregnancy, such as back ache,
swollen limbs, and hemorrhaging, quite apart from the actual fact
of being off work for the purpose of giving birth, recovery, and
(for those natural mothers who do) nurturing, which simply do not
apply to "adoptive" parents .(be they,male x female). These
considerations provide the underlying rationale for the Maternity
Leave provisions of the Emolovment Standards Act which are
carried forward and supplemented in the parties' collective
agreement. While the issue was different, Ms. Farson notes the
recognition by this Board of the physical problems relating to
actual pregnancy in Tracey and the Crown in Right of Ontario,
reported (1981), 28 L.A.C. (2d) 302, at pages 308-9. A pregnant
employee,, because of these physical considerations, may in facr
be required by the emolover to take leave of absence from her
employment, and income-protection therefore becomes that much
more of a consideration. The interests of collective-
bargaining, in addition, require that the parties to a collective
argument be allowed a degree of latitude to make judgments aoout
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its terms, without having to be exposed to a s.15 scrutiny over
any and every distinction drawn between the various members oL
the unit (for example, on salary grids). Finally, the
distinction drawn in the present Casey is in any event not
arbitrary or "offensive" to human dignity, and what the present
applic.ation really amounts to is the Union trying to take
advantage of the Charter to obtain in a "rights" arbitration a
benefit it never attempted to justify with the employer at the
bargaining-table or, failing that, with a board of "interest';
arbitration as provided by the terms of the Crown Employees
Coilective Bargaininq Act.
We have considerable sympathy for that latter-most
argument of Ms. Farson, noting as we do that it is,in fact the
Union that has launched the present challenge to the collective
agreement that the Union itself has been party to over the years.
The provision for Maternity Leave in its initial form,
incorporating the protection found in provincial legislation, was
negotiated into the collective agreement in the 1960's. I r. 1975
the parties agreed to insert the present Article 51 providing for
"Adoption Leave" as well. In 1984 the Union sought changes to
the "Maternity Leave" provision only, ultimately receiving those
changes, in their present form, in the award of an "interest"
board of arbitration chaired by Mr. Howard Brown. No changes to
the "Adoption Leave" Article, on the other hand, have been sought
by the Union'in negotiations since 1975, including the round
leading to the current collective agreement, which was effective
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January 1, 1986 (the effective date of section 15 of the Charter
having been April 17, 1985). The Union now asks us to find that
the distinction drawn by it over the years lacked any rational
basis, and we are loathe to do that.
It is not on that ground, however, upon which we rest
the present decision. Rather, we find a complete answer to the
present application to be found in the provisions' of sectlon
15(2) of the Charter, as relied upon in the alternative by the
employer. Section 15,~ once again, provides in full:
Equality before 15.(l) Every individual is equal before
and under law and.under the law and has the right to
and equal the equal protection and equal benefit of
protection and the law without discrimination and, in.,
benefit of law particular, without discrimination based on
race, national or ethnic origin, colour,
religion, sex, age or mental or physical
disability.
Affirmative (2) Subsection (1) does not preclude any
action law, program or activity that has as its
programs object the amelioration of conditions of
disadvantaged individuals or groups
including those that are disadvantaged
because of race, national or ethnic origin,
colour, religion, sex, age or mental or
physical disability.
The forerunners to the present statutory provisions for
"Pregnancy Leave" in Ontario were contained in the Women's Equal
Emolovment Opportunity Act. The principal protection that they
provided, perhaps now taken for granted, was to prohibit
termination as a result of pregnancy. That protection included,
at that time, a guarantee of leave of absence six weeks prior.to
the estimated date of delivery, up to the actual date of
delivery. Provision was also made for a mandatory six weeks’
leave without work following delivery, which could be reduced to
"such shorter period as, in, the written opinion of a legally
qualified medical practitioner, is sufficient". Those measures
clearly sought to address the simple fact that women undergoing
pregnancy were vulnerable to discrimination in employment - ;n
particular, the loss of their jobs - because of a temporary
physical Incapacity, or perceived incapacity, to be at work or
perform the normal responsibilities of their job. Tze
“affirmative-action”,
or counter-discrimination, aspect of these
provisions was in fact noted by this Board in the recent Conway
case, 1982/85 etc., issued August 14, 1987,,wherein the .Board
wrote at page 5 and following:
It iS clear thatThe Employment Standards Act was
designed to confer benefits upon women in preparation for childbirth and the aftermath that was designed to
.cure the discrimination with respect to employment that they otherwise incurred before the introduction of the
Legislation. For our purposes women encountered two
significant disadvantages with respect to the
employment relationship when about to have a cnilc.
Firstly, women either were confronted with termlnatloc
by their employer or were compelled to resign their positions when because of the discomfort of the
pregnancy or in order to prepare for the child birth
experience they could no longer adequately discharge
the duties of their position. Indeed it was often in
their best interests, having regard to the existing
Legislative structure, to endure termination in order
to secure more favourable unemployment insurance
benefits than had they simply quit the employ of their employer before giving birth. In that sense, there was
minimal or no job security provided the employee W.‘Ic
required a prolonged absence from work in order to have
her baby and to nurture the baby after nirth. ;ndeec,
it was clearly at the employer's discretion as to
whether it was prepared to~rehire or reinstate the
employee to the position she had occ*zpled after c,ne
birthing experience was completed.
group. But those improvements over time do not alter the
essential nature of what the law or program was and is - a law or
program whose object is the amelioration of conditions of
(previously) disadvantaged individuals or groups.
"Adoptive" parents (be they male or female) do, as Mr.
Paliare submits, have needs as well. This growing social
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And this raises the second disadvantage. The female employee who was reinstated was extended no guarantee
that upon her return to work the benefits (or,for that
matter her previous job) that had accrued prior to
leaving the employer's employ, such as her salary and
seniority, would be preserved. In other words, she literally could be treated as a new employee whose past
experience would have no merit or relevance with respect to the salary and other benefits she had earned
prior to her leaving employment to have her child.
The introduction of The Emnlovment Standards.Act cured
those two apparent disadvantages in a very dramatic
manner. With respect to the pregnant women's job security the employee, as a matter of right, was entitled to a leave of absence without pay for a
maximum period of seventeen weeks for the purpose of
child birth (see Section 36(s)). During the period of maternity leave the employee retained her employment
status. That is to say she could neither be terminated
nor be required to quit as a result of leaving work for
child birth purposes (see Section 35(l)). Secondly, and of more significance to this case, the employee
upon her return to work after completion of her leave,
was entitled to occupy her previous position or be
provided "with alternative work of a comparable
nature". .And with respect to the continuing viability
of her entitlements that accrued from her work
experience prior to taking maternity leave the employer was required to pay the employee upon her return "at
not less than her wages at the time of her leave of
absence began and without loss of seniority or benefits
accrued to the commencement of her leave of absence".
Just as the statutory provisions have been improved-upon over
tlme, so has the collective agreement improved the protection and
benefits afforded to the members of this particularly vulnerable
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awareness is reflected in the current provisions 'of the
Unemolovment Insurance Act (section 32), as well, as mentioned,
in the negotiation in 1975 by the parties themselves of
provisions for the taking of "Adoption Leave". Row the members
of that more-recently recognized group find themselves looking at
the benefits being afforded the group which the community had
initially considered in need of protection, and saying "What
about us?". From the point of view of cellective bargaining,
that this second group might ultimately aspire to some or all of
the benefits now being enjoyed by the first is perhaps not a
surprise. By the express terms of section 15(z) of the Charter
of Riahts, however (assuming, asp we have said, that the Charter
would otherwise have. application to this matter) they cannot use
section 15(l) to get there.
The grievance is accordingly dismissed.
Dated at Toronto this14thday of April, 1988.
M. G. Mitchnick _~ Vice-Chairman
I. Free$noin - Member
‘i
0tU**,0 cf?caw.!EMPLo”EEs
GRIEVANCE
SEI-TLEMENT :
BOARD
EMPLOY~S DE LA CO”RONNE OEL’ONTARIO
CQMMlSSliN DE
REGLEMENT
DES GRIEFS
1270/86, 1276/86, 1277/86
IN THE MATTER OF AN ARBITRATION
Under,
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
BETWBEN
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Vinall. et al) Grievor
-. - and -
,The Crown in Right of Ontario
(Ministry of Natural Resources) Employer‘
BEFORE '0. Gray Vice-Chairperson
.I. Thomson Member
J. Miles Member
FOR TEE
GRIEVOR
M. Webb
Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE D.~Costen
RESPONDENT Counsel
Legal Services Branch
Management Board of Cabinet
HEARING May 27, 1993
.
AWARD
n
The union alleges that the employer has breached the terms on which a
grievance by Roy Vinall was settled in 1988. It asks that we enforce the terms of that
~settlement. The employer says that it has abided by the terms of the settlement. As
a preliminary matter, however, it objects that this Board has no jurisdiction to enforce
the terms of the settlement because they involve the provision of training, a matter
which subsection 18(l) of the Crown Employees Collectiue Bargaining Act (“the Act”)
says may not be the subject of collective bargaining. This award deals with that
preliminary objection. -~
The Facts Alleged by the Union
Apart from references to correspondence received by the Grievance Settlement
Board (“GSB”), the background description which follows reflects union counsel’s
opening statement. Parts of it may be in dispute. It is not in dispute that the parties
entered into the Memorandum of Settlement quoted below.
On October 6, 1986, Mr. Vinall and two other pilots employed by the employer
grieved that they had been improperly denied a position described as “IFR - Remote
Sensing Pilot” which had been the subject of two job postings. The job involved flying
an aircraft described to us as a “Navaho” out of the Ministry’s Malton base. The first
,posting did not identify current proficiency on that aircratt as something applicants
had to have. Mr. Vinall did not have it. A more junior applicant did. Mr. Vlnall was
interviewed. His score was almost as high as that of the junior applicant. ARer the
interviews,, the employer cancelled the job competition and reposted them job:. The
second posting required current proficiency on the Navaho aircraft. The more junior
of the original applicants, who had that qualification, was awarded the job. ’
The three grievances were referred to the GSB for arbitration. Having earlier
had the hearing of the grievances adjourned sine die, in mid-1988 the parties executed
a written Memorandum of Settlement in the following terms:
In the matter of grievances (G.S.B. #1270/&X, 1276/86 and 1277/86) between:
The Ontario Public Sorvico Employees Union
C.R. Vinall, L. Zinn, P. Crosby, Grievers)
The Crown in Right of Ontario
(Midtry of Natural Resources)
the parties are agreed to the following ss a foil and fd.resolution
1)
2)
3)
4)
5)
The Mioioky sbsRpmvide’training, to each of tire Grievers to o. proficient
level, on the King Air in order of seniority.
The training shsll begin on approximately October 1, 1988, following the
completion of the 215 program, beginning with the most senior grievor.
Training for the other two grievor-s shsll begin on appmxiinatoly the same
date in 1989 sod 1990., Following completion of their training, eech grievor
will be @ven reasonable flying time on the King Air.
Upon completion of their training, the grievers agree to compote for Ring Air
Pilot vacsncies es they arise. Soch vacancies will be posted and conducted in
accordance with Article.4 of the Collective Agreement.
Should any or oil of the Grievor6 be the successful candidate in any
competition described in #3, they agree to accept the position androlocato as
necessary. Article 4.5 will apply.
The Union and the Grievor eholl immediately withdraw their grievances
and notify the Registrar .of the Grievknce Settlement Board that the matter
is resolved.
The above temw and conditions are agreed to without prejudice to the positions of
the parties and shall not be raised in any forther or other disputes.
The “Air King” is another aircraft which was and is being flbwn out of the Ministry’s
base in Malton.
in September 1988, the GSB was advised by the union’s counsel that the three
grievances had keen settled and that, in accordance with the settlement. the grieve?
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i-
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were withdrawing their grievances. In January 1993, the union wrote to the GSB as
follows:
The GSB did not issue an award in the above zaptioned matter CIE a Settlement was
imched.
A copy of the Memorandum of Settlement is enclosed.
It is now requested that this matter be scheduled for arbitration as the terrm of the
Settlement have not been complied with and therefore the original grievances
remein unresolved.
Whatever may have been intended by that letter, the union does not now ask that this
Board entertain Mr. Vinall’s original grievance. As we,noted at the outset, it asks that
we enforce the terms of the Memorandum of Settlement by which that grievance was
-. settled.
The Union’s position is that the training and flying time provided for in the -
Memorandum of Settlement are the training and flying time required to attain and
maintain the qualifications required of a pilot of an Air King aircraft under the
federal Department of Transport’s Air Navigation Order, Series 7, Number 3. It says
Mr. Vinall received that training and flying time in 1989, 1990 and 1991. He is the
only one of the three grievors still in the bargaining unit. By letter dated November 6,
1992, the Ministry advised Mr. Vinall that it would no longer fund his “annual Air
King training” because of the “current fiscal environment”. He was also told that the
Ministry is
prepared to assue you that you will be interviewed for the ziext pilot vacancy at
Malton if future reauitment is requimd. hthm, we are prepared to awure you
that ourrenoy on a King Air will not be a job reguirement nor will it be considered
is a factor in the interview process.
This assurance apparently plays a part in the argument the Ministry would make that
its refusal to provide ongoing training and flying time is not a breach of the
Memorandum of Settlement.
Enforcingthe terms of that memorandum will require that we interpret them.
Argument
n
In the course of their argument, counsel referred to the following provisions of
the Act:
l&-(l) Every collective, agreement shall be deemed to provide that it is tire
exclusive function of the employer to manage, which function, without limiting the
generality of tire foregoing, includes the right to determine,
(a) employment, appointment, complement, organization, assignment,
discipline, disniissal, suspension, work methods and procedures, kinds
and locations of equipment and classification of positions; and
OJ) merit system, training end development, appraisal and superanntt-
ation. the gfierning principles of which are subject to review by tire
employer with tire bargaining agent,
and such matters will not be the subject of collective bargaining nor come witbin
the jurisdiction of a board.
-
(2) In addition to any other rights of grievance under a collective
agreement, ml employee claiming,
(a) that Iris position baa been irnpmperly classified;
(b) that he baa been appraised contrary to the governing principles
and standards; or
(c) that be has been disciplined or dismissed or ,Buspended tiom his
employment without just cause,
~may process such matter in accordance with the grievance procedure provided in
the collective agreement, and failing final determination under such procedure, the
matter may be processed in accordance with tire procedure for final determination
applicable under section 19.
19.-(l) Every collective agreement &all be deemed to provide that in the
event the parties am unable to effect a settlement of any diBerenc.ea between them
arising from the interpretation, application, admirriatration or alleged contravention
of the agreement, in&ding any question aa to whether a matter is arbitrable, such
titter may be referred for arbitration to the Grievance Settlement Board and the
Board after giving fidl oppt.unity to the parties to present their evidence and to
make their submissions, shall do&la the matter and its decision is fmal and
binding upon the parties and the employees covered by the agreement.
. . .
-5s
(6) Where a party or an employee has failed to comply .tith sny of the
terms of the decision of the Grievance Settlement Board, any party or employee
affected by the decision may;&% the expiration of fourteen days from the date of
the release of the decision or the date provided in the decision for compliance,
whichever is later, file in the’office of the tigistrar of the Supreme Court a copy
of the decision, exclusive of the reasons therefor, whereupon the decision shall be
entered in the same way as a judgment or order of that court and is enforceable as
,¶I&.
Counsel also referred to four decisions.of this Board: Sim arid Buin, 1387186 (Draper),
Jansen, 088l89 (Watters), Neamtz, 516184 .fRoberts) and Union .Gricvance, 802/91
(Watters).
The award in Sim and Bain, supra, c0ncerned.a grievance which alleged that
the employer had failed @comply with the written terms on which a previous
grievance had been settled. Notwithstanding the willingness of both parties to have
it deal with their dispute about the interpretation of their settlement agreement, ~a _
panel of the Board refused to do so on the ground that, in its view, the dispute did not
fall within the statutory jurisdiction conferred on the GSB by the Act. This decision
was the subject of .&I application for judicial, review, to which reference will be made
later.
In Junsen, supru, another panel had a discharge, grievance before it. The union
claimed that the matter had been settled. The employer said it had not. Further, the
employer argued that the Board was without jurisdiction to consider whether a
settlement had been concluded, relying on the award in Sim and Bain, supru. The
panel ruled that it did have that jurisdiction:
In our judgment, we do possess the jm%diction to determine whether the parties
effected a settlement of the issuea in dinpnta. We think that this csse is distinguish-
able from Sim and Bain There, both parties asked the Bosrrktc interpret terms of
settlement which had been reduced to written form. The Board coneluded that it
lacked the necessary authority to embark on an interpretation of the agreement.
In this instance, we are being asked a more fundamental question, tbia being,
. . : whether 12 Bettlemen~ actdly exista between these parties. In our +d6, thi8 is
a significantly d&rent issue. Indeed, the Board considers that this case is much
closer to the factual situation found in w, 266/84l (Kemmdy) which wae relied
on by the Union. It ia apparent fium a reading of the award that the Board there
wan prepared to intjxpret written cdmmunic~atione in an effort to find whether a
I;:.. gc;:*
-6-
settlement had been reached. After examining these communications, it held that
a settlement did exist. The Board, thetifore, concluded that it would be improper
to entertain the merits of the dispute. ~ln this regard, the award states at page four
(4): II
There are numerous &itral authoriti& to the effect that a grievance that
is settled, withdrawn or abandoned cannot be the subject matter of a
subsequent ‘submission-to arbitration.”
We are inclined to adopt an approach &II& to that employed in u. More
specitically, we conclude that onr jurisdiction to proceed is found within section
19(l) of the Cmwn Emulovees Collective Bareainim? Act. Under that section, the
Board is empowered to determine, inter alia, whether a matter is arbitrable. In our
assessment, it is necessary for u6 to examine the facts in order to properly consider
whether these parties arrived at a binding agreement following the prehearing
meeting. If this question were to be answered in the afliiative, this Board would
be deprived of the right to hear the grievance. Conversely, if the parties were not
ad idem, the grievance could go forward. The Employer would then be required to
commence it6 case and to show just cause for the discipline. A contrary finding :
would, in our judgment, iiixiermine the sanctity of settlements freely concluded as
it would permit parties to withdraw from such agreements with impunity. For
reaso~l~ which are obvious, that result would not provide for good labour relations.
We are .coneequently disinclined to adopt reasoning which could have that elTect. -
.’ In Neumtz, &pru, the union asked the Board to interpret the terms of an Order
it had earlier issued at the joint request of the parties, embodying an agreement the
parties had made in order to settle certain,grievances. The employer objected that the
Board was finctus officio, and therefore without jurisdiction to do as the union asked.
One of the provisions of the parties’ agreement and, thus, of the consent Order was
that
8. This settlement ahall be made an Order of the Grievance Settlement Board
only for the pnrpose of enforcement of this settlement.
Having regard to that provision, the Board concluded that it did not have jurisdiction
to do as the union asked:
Considering the submissions of the parties in the light Of the unique facts of
thie case, we must conch& that we do not have jurisdiction to clarify ,any latent
ambiguities in the settlement &eexnent which wae embodied in the instant
Consent Order. We have no doubt that by virtue of paragraph 8 of the Minutes of
Settlement, the parties agreed that the settlement would .be made an order of the
Board for a,very limited purpose, i.e., the purpose of obtaining enforcement of the
terms bf the settlement under Section 19@) of the Crown Employees Collective
Bargaining Act. They did not agree the Minutes of Settlement would become a
Board order for all purposes, nor are we convinced that 88 a matter of law the act
of issuing the Consent Order transformed the Minutes of Settlement into an award
of the Board for all interits gnd purposes, in&%& the purpose of clarifying the
language in which the parties cast their settlement. If this were,so, it would stand
aa a complete contradiction to paragraph 8, which, after all, formed part of the
Order.
.
If the p&ties had wished to place such ambiguities before the Board for its
determination, they could have done 60 by including appropriate language in their
Minutes of Settlement. As we have seen, the language they did choose to use
indicated precisely the opposite intent.
The’award in Union Grievance, supra, dealt with an objection by the employer
to the Board’s jurisdiction to-entertain a grievance alleging that it had breached the
termsof an agreement by which an earlier grievance had been settled. The settlement
agreement had not been made an order of the GSB. The employer argued that the .
Board had no jurisdiction to interpret a settlement and that the grievance was
inarbitrable under subsection 19(l) of the Act because it was not premised on breach
~of specific articles in the collective agreement. The awards in Sim and Bain, Jansen
and Neamtz were cited.’ With reference to. the award in Sim and Bain, supra, the
Board noted that
The Union subsequently filed an Application For Judicial Revi&w dated October 14,
1988. The primary ground for ssking for the intervention of the Divisional Court
was stated ss follows:
the Grievance Settlement Board errored [sic1 in declining to exercise its
jurisdiction under Section 19 of the Crown Emulovees Collective Bargaining
A&,, R.S.O. 1980, c. 108 to give a final and binding determination to the
grievances of Paticia Sii and Douglas Bain
The Union asked for an Order qua&kg the earlier decision of the Board and for
a further Order remitting the matter back for f& and binding determination The
endorsement of Mr. Justice Reid on the Application Record read:
Application is unopposed. The. de&ion of the Grievance Settlement Board is
set aside and the matter remitted to the Board for a he& of the grievance.
1 c: : : !yV-:
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The Board in concluded that it had jurisdiction under subsection 19(1)of the Act
to resolve the parties’ dispute about .whether the employer had complied with the
settlement, because it was a difference .lwhich arose from the application,
administration or alleged violation of the collective’~agreement:
The dispute between the parties initially arose from a complaint that the
Employer had improperly administered the pmvisions of Appendix 3, Schedule A
ofthe collective agreement. The grievance ofSeptember 11,1989 was subsequently
resolved on March 8, 1991. The settlement .reached on that date incorporated
earlier guidelines of March 14, 1990 that addressed, inter alia, the accumulation
and utilisation of excess hours bye Schedule A employees. The Board, after
reviewing the history of the dispute,~ concludes that the threshold issue on the
merits is whether the Employer has complied with the aforementioned settlement.
Mom specifically, did it change the guidelines prior to December 31, 1991 aa
alleged. Such question, of necessity, requires an interpretation of paragraph
number four (4) of the guidelines. In this regard, we do not accept the Employer’s
assertion that the settlement was complied with 88 of the issuance of the
guidelines. Quite clearly, then settlement on its face contemplated that these
guidelines would be in effect without change from April 15,199l to December 31,
1991. The question of change cannot, therefore, be avoided.
The. Board has been persuaded that the ultimate difference between the
parties is directly related to the application, administration or alleged contraven-
tion of the collective agreement, particularly Appendix 3, Schedule A thereof.
Section ,19(l) of the Crown Rmulovees Collective Bargainme Act makes the
Grievance Settlement Board the tinal arbiter of such disputes between the parties.
The Board by statute is authorimd to make a final and bii decision There is
no question that the issue wa8 properly before the Board by way of the’grievance
of September 11,1989. We have not been convinced that jr&diction was ousted or
exhausted as a consequence of the subsequent settlenmnt: Rather, we think that
jurisdiction over the matter continues for purposes of emuring that the settlement
is, in fact, complied with by both parties. This mle may require us to make a tinal
and binding decision on the threshold issue, as described above. To be clear, we Snd
that the parties may return to the Board in the event there is an allegation of non-
compliance.
Cur decision on this aspect ofthe case promotes the labour relations objective
that settlement of grievances be encouraged. Parties would not be inclined to enter
settlements if they could be breached with impunity without recoume to the
Grievance Settlement Board. In a matter such as this, the parties could not resort i tasection 1x6) of the Cmwn Enmlovees Collective Baraainim! A& as the Board did
not issue a decision that could be filed in the Supreme Court. Further, in view of
the settlement, it is unlikely that the Union could pmceed with a fraah grievance
on the identical issue Were the Employer correct, the Union here would be
requtred~to go to the courts of general jurisdiction in order to seek enforcement.
Quito apart from the possible effect of the &hta of L&o Act, R.S.O. 1980,
Chapter 459, it would seem preferable, an a matter of policy,?o have issues of the
present tvpe dealt with by adminibative tribunals having labour relation8
expertise. Thie is especially m vie a vis the Grievance Settlement Board which
T: .-T~‘---~--~--,-
-9-
initially entertained the grievance and wbicb by statute is compelled to render a
tinal and binding decision on outstanding di&rences between these parties.
The Board found support for its conclusions in the result in the Divisional Court in
Sim and &in, supru, despite the employer’s argument that that result was premised
largely on the fact that there both parties wanted the Board to resolve their dispute:
Our decision is also consistent with Sim and Bain As stated previously, that case
raised an issue of compliance with a settlement. That question, wbicb W~EI also
before the Board by way of a mcond grievance, called for an interpretation of the
settlement. Tbe’Board declined to entertain the dispute. kit.6 judgment, it lacked
the requisite jurisdiction under the Crown EmDlOveeS Collective Bargeid Act+
The basis for the decision was placed squarely before the Divisional Court in the
Application For Judicial Review. We think it highly unlikely that’tbe Court would
have set aside the decision and remitted it back ‘to the Board were it not of the
opinion the Board, in law, possessed the juri&iction to undertake and complete the
task. It is obvious that the Grievance Settlement Board is a creature of statute. Its
jurisdiction ~cannot be enlarged by either the Court or the consent of the parties.
Ultimately, on our review of Sim and Bein, we think the Divisional Court hss &&mined that this Board has the jurisdiction to hear a compliance issue _
requiring an interpretation of term8 of kttlement. This Cbairpereon’s comments
in Jansen relating to Sim end Bein were made without the benefit of the Divisional
Court’s endorsement. Indeed, Jansen wa# heard and released prior to the release
of that endorsement.
The Board also observed that the decision in Neamtz turned largely on the provision
in the .parties’ agreement that it was only to be made an order of the Board for
purpose of enfor&ment, which led the Board to conclude that the parties intended that
enforcement would be dealt with by the means contemplated in subsection 19(6) of the
Act.
Without acknowledging that it is correct, counsel for the employer argued that
the decision in Union Gricvonce, supra, is distinguishable because the relief sought
here is an order directing the employer to provide training. Because of subsection 18(l)
of the Act, “training” could not be the subject of a collective agreement provision,
counsel submitted, and accordingly could not be the subject of a difference of the sort
contemplated by subsection 19(l). He also argued that the wording of subsection 18(2)
of the Act makes hit clear that the GSB does not have jurisdiction to entertain a
~.~__-- __-- ~,-___-~ _.~.~.
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.
-lO-
grievance about the provision of training. He submitted that a settlement cannot give
the GSB that jurisdiction.
n
In answer to questions by the chair, counsel for the employer said it was not the
employer’s position that the minutes of settlement were unenforceable, but only~that
they could not be enforced by the GSB. Asked’how the employer thought they could
be enforced, counsel first speculated about the possibility of an unfair labour practice
complaint to the Ontario Public Service Labour Relations Tribunal. Ultimately, he
stated that the Crown’s position is that interpretation and enforcement of a settlement
agreement of this sort could be the subject of court proceedings.
Counsel for the employer noted that the settlement in question was made before
the decision in Union Grievance, supru. He submitted that we should consider the
significance of the parties’ decision whether to make their settlement an order of the -
Board or not in light of the jurisprudence as it then existed. He argued that the
parties’ .failure to have the terms of their settlement incorporated into a Board order
should lead us to infer that they did not contemplate that a dispute about the level
and sufficiency of training provided pursuant to the settlement would come back before
the Board.
Counsel for the union argued that the analysis in Union Grievance, supru, is
directly on point and cannot be distinguished as counsel for the employer suggests. She
submitted that most settlements in some way or other touch on management rights
and other subjects not addressed by the relevant collective agreement. She argued that
the Board has jurisdiction over the parties’ dispute here because the dispute concerns
the terms on which the parties settled a grievance concerning the interpretation,
,.application,administrationor allegedcontraventionofthe partiescollective agreement
and, hence. involves a difference “arising from” the interpretation, application,
administration or alleged contravention of the parties collective agreement. She denied
that the law on these points was clearly against the Board’s having jurisdiction when
the settlement was made. She also submitted that our jurisdiction is not determined
by what the parties thought at the time.
There was no reference in argument to the fact that the allegation of non-
compliance with a grievance settlement was brought before us by requesting that a
hearing be convened with respect to the original grievance, rather than by processing
a fresh grievance through the grievance procedure.
Decision
In labour relations, as in other contexts, a resolution negotiated and agreed to
by the parties to’s dispute ispreferable to one imposed on them through adjudication.
Grievance processes are intended to encourage and facilitate settlement. Parties to
labour relations disputes are expected to pursue settlement before resorting to -
arbitration. The language of subsections H(2) and 19(l) of the Act reflects that
expectation.
If settlements are to be encouraged, then they must also be enforced: Re Zehrs
Markets and Retail Clerks Union, Local 1977(1984X 14 L.A.C. (3d) 379 (Barton) at 330.
In Re Canadian General-Tower Ltd (Oakville Ditiision) and United Rubber Workers,
Local 292 (1990), 12 L.A.C. (4th) 153, arbitrator Craven observed (at pages 155-156)
that
It is generally accepted that boards of arbitration have jurisdiction to enforce
settlements reached during the grievance procedure, and that in excrcisin6 this
jurisdiction an arbitrator is to give effect to the parties’ agreement, withart going
b-hind the term of settlement to determine whether it was the “right” reeult in the cimmutams. The latter principle follows not ordy from the law of contracts,
but also &om the sound indtial relations policy of enccuraging the parties to
settle their own disputes: see generally, Cmurn E&c& 119781 O.L.R.B. Rep. 344;
Perfection Ry Co. Ltd. 119841 O.L.R.B. Rep. 68; Corpomtion of Borough of Scar-
borough and C. U.P.E., Lot 368 (nnreportcd, May 23, 1978 (Ekaodt)); Re Corp. of
Borough of Etobiwke and Etobimke Professional Firefighters Assn, L?c 1137
(1982),6 L.A.C. (3dl62 (Kennedy); Re SkZw Inc (Hilton Works) and U.S. W. (19891,
5 L.A.C. (4th) 284 (IiseRin&. I sccept these pmpositions. Moreover, there is nc evidence before ma wnimming the merits of Mr. Heams’ original grievance, nor
would such.evidence be relevant to my determination of this dispute.
Nevertheless, if the grievance settlement is to be enforced its ‘terms must be
interpreted If, ae the company argues, the settlement is couched in ambiguous
language, then that ambiguity must be resolved so that the real agreement can be
given effect. In tbis rkgard them is a crucial distinction to be drawn between
second-guessing the settlement in light of’the original dispute, which would
constitute unwonted arbitkl interference in the grievance procedure, end
interpreting the terms of settlement to give effect to the Parties mutual intention,
which constitutes the proper exemise of the arbitral jurisdiction to enforce private
grievance settlements.
The arbitrator’s jurisdiction to enforce the terms of a grievance settlement was
not in dispute before arbitrator Craven in that case. It was in dispute, however, in one
of the cases he cited: Perfection Rug Co. Lid, [1984] O.L.R.B. Rep. 68, 84 C.L.L.C.
(16,017. There, the Ontario Labour Relations Board (“OLRB”) was acting as a
grievance arbitration boaSunder section 124 (now 126) of the Ontario Labour
Relations Act(“the LRA”), which provided that a party to a collective agreement in the
construction industry ’ . . . may refer a grievance concerning the interpretation, .
application, administration or alleged violation of the agreement, including~ any
question as to whether a matter is arbitrable, to the Board for final~and binding
determination.” The grievance referred to the OLRB in that matter alleged that the
employer had failed to comply fully with the terms on which an earlier grievance had
been,settled. The employer argued that the OLRB had no authority under section 124
of the LFtA to enforce a grievance settlement. After reviewing the arbitral
jurisprudence, the OLRB concluded that:
Whether raised in the context of the original grievance (as in Suss Woodemfi Ltd,
[I19831 O.L.R.B. Rep. April 600D or of a second grievance (such ee in the present
case and in Ford Motor Company [(1952), 3 L.A.C. 1159 @ng)D, an allegation that
a party to a collective agreement has failed to comply with the settlement of a
grievance constitutes an arbitmble question concerning the “application” or Y . . admmdration” of the collective agreement, within the meaning of section 124(l)
ofthe Act.
The language of section 124 of the LRA was no broader than that of subsection 19(l)
of the Crown Employees Collectiue Bargaining Act.
We agree with the‘conclusion of the award in Union Grievance, supra, although
we would not have assigned as much significance as that award did to the Divisional
Court’s disposition of the unopposed application for judicial review of the award in Sim
and Bain. The award’s assessment of the significance of that disposition depended, in
part, on the proposition that the arbitral jurisdiction of the GSB cannot be enlarged
beyond its statutory confines by the consent of the parties. We are not sure that that
is so. If it were, provisions in the parties’ current collective agreement for expedited
arbitration by a single vice-chair of the GSB sitting alone might be ineffective. In any
event, we agree that, with or without the parties’ specific consent, the GSB has
jurisdiction under subsection 19(l) of the Act to resolve a dispute about whether or not
a party has complied with a grievance settlement. Such a dispute is a difference
“arising from” the application, administration or alleged violation of the col,lective
agreement.
We do not accept the employer’s argument that because the parties did not have
their agreement. incorporated into a Board order, they must have expected that
disputes about whether the training provided met the requirements of the agreement
would not be resolved by the GSB. The settlement preceded the decision in Sin and
Bain, supru. If the parties anticipated the possibility’of such disputes, it would, have
been natural for them to expect that the GSB would be the forum in which any such
dispute would be resolved, absent an existing GSB order which could be enforced
pursuant to subsection 19(6) of the Act. In any event, the parties did nothing to,give
express contractual effect to their expectations, whatever those expectations may have
been. Nothing in the terms on which the parties agreed, or in the circumstances in
which they agreed to them warrants our declining jurisdiction to resolve a dispute
about whether those terms been complied with. Our jurisdiction under section 19(l)
of the Act to interpret and enforce a grievance settlement is not contingent on the
parties’ having expressly acknowledged it when making their settlement.
Are we without jurisdiction to, interpret and enforce the particular grievance
settlement in issue’here because one of its terms involves training, a subject referred
to in subsection 18(l) of the Act? A
Subsection 18(l) of the Act does not expressly limit the jurisdiction of the GSB
- the reference to “a board” at the end of the ,subsection is to an interest arbitration
board constituted under section 11. Nor, in our view, does the reference in subsection
M(2) of the Act to some but not all oft the subjects identified in subsection 18(l)
impliedly impose a restriction on what would otherwise be within the GSB’s
jurisdiction by virtue of subsection 19(l).
The enforceability of-a grievance settlement cannot depend on whether the
terms of the settlement reflect what an arbitrator would have done’ or could have done
in response to’the original grievance. Nor can it depend on whether it would have -
been within an arbitrator’s jurisdiction to impose the terms which the parties
incorporated into the settlement. Limiting the enforceability of,settlements in those
ways would effectively negate one of the considerable attractions of dispute resolution
by negotiated settlement - that the parties are not confined, as an arbitrator would
be; in defining either the scope of the problem they wish to resolve or the nature of,an
appropriate response to it. Similarly, the enforceability of a grievance settlement
cannot depend on whether its terms could or would have been the subject or result of
bargaining for a collective agreement. If settlements are to be encouraged, any lawful
,provision of a settlement agreement must be enforceable, and enforceable in the same
forum as any other such provision.
The employer does not say that subsection 18(l) prohibited it from entering into
an agreement with the union to provide training to an employee, nor that the
agreement is unenforceable because the subsection makes it unlawful. In our view, the
GSB has jurisdiction under subsection 19(l) of the Act to interpret and enforce any
lawful provision of an agreement by which the parties to a collective agreement have
settled a grievance, including the provisions in question here.
Accordingly, we are satisfied that we have jurisdiction to hear and determine
the parties’ dispute on the merits. Our hearing for that purpose will commknce on
August 23,1993. n
Dated at Toronto this 21 day of July, 1993. S