HomeMy WebLinkAbout1987-0714.St. Laurent.90-11-23IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING 'ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (St. Laurent)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Attorney General)
BEFORE:
FOR THE
GRIEVOR
FOR THE
EMPLOYER
HEARING:
J. D. McCamus Vice-Chairperson
F. Taylor Member
I. Cdwan Member
Employer
C. Hofley
Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
M. Uhlmann
Manager, Staff Relations
Human Resources Management
Ministry of the Attorney General
April 14, 1989
May 31, 1989
R
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The Grievor is employed as a Jr. Deputy Local Registrar
(Bilingual) in the court offices for the Judicial District of
Niagara South which are located in Welland, Ontario. The subject
matter of this grievance concerns her classification in this
position. The position is classified at the Deputy 1,
Administration of Justice level. The Grievor contests 'that
classification and requests a reclassification to the Deputy 2
level in the Administration of Juetice series. The Position
Specification, dated March 20th, 1987, which was in effect at the
material time, was filed in this proceeding as Exhibit 9. The
partiee to this proceeding have not seriously questioned the
accuracy of that document and it will therefore be useful to set
out items two, three and four from that document in full below.
For convenience of reference, the subparagraphs of the first entry
in item three have been numbered.
POSITION SPECIFICATION AND CLASS ALLOCATION FORM
POSITION TITLE JR. DEPUTY T&CAL REGISTRAR (BILINGUAL)
2. PURPOSE OF POSITION To act as Junior Deputy Local Registrar by virtue of OXC appointment and to perform duties relative to the initiation and progress of actions and other mattero in Supreme and County Courts; provide counter service in English and French in the office of the Local Registrar, S.C.O.: performs related dutiee
3. SUMMARY OF DUTIES AND RESPONSIBILITIES 1. Performs duties in the initiation and progress of actions and 852 other matters in Supreme, County and Surrogate Courts and participates in the general litigation work of the office and counter service by:
(i) attending public counter, reviewing documents presented i,n
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English and French for filing e.g. issuing and signing Writs of Summons, Appearances, Statements of Claim, Letters of Administration or Probate, Guardianship, Custody applications, examining for completeness, accuracy of form and detail, advising on changes and additional material required e.g. Affidavits, consents, and ensuring subsequent filings comply with order of filing, time-limits honoured, statutory requirements met, discussing or referring only most complex; maintaining awareness and application of Rules of Practice;
(ii) checking documentation relative to Provincial Court Appeals for appropriate endorsements and completeness, maintaining current listing of and processing and scheduling of appeals;
(iii)recording transaction on Procedure Card: charging and collecting feeat filing material in, appropriate dockets; making available records for public access, supplying and signing certified copies:
(iv) Accepting payments into Supreme and County courts, issuing receipts and signing Direction for Payment into Andy out of Court:
w accepting and examining divorce applications, checking for completeness and ensuring time-frames are honoured: completing applications for Decree Absolute: signing Certificate of Registrar, forwarding to Local Judge and when returned signing Decree and forwarding to Solicitor and other parties: collecting fees as appropriate;
(vi) checking for certificate of readiness notice of trial hearing and setting Divorce, County, Supreme and Surrogate Court cases on trial list;
(vii)reviewing and passing records: completing and signing certificates, setting actions down, filing in correct court dockets:
(viii)oheoking Judgements and entering Orders of Supreme, County 64 Surrogate courts ensuring compliance of form to statutory requirements and intent of Judge's decision: advising solicitors on changes required for acceptance; (verifying intent with Judge concerned, as required): exercising statutory signing authority for the signing of documents, e.g. Judgements, Orders, Praecipe orders, Writs, which have a legally binding effect.
(ix) processing documents in County, Supreme, Surrogate Court Applications e.g. Notice of Motions, Landlord and Tenant actions, Change of name, Mechanics Liens, filing, issuing and signing certificates as required, exercising statutory signing authority as Deputy for related documents such as Certificates
/'
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of Actions in mechanics lien proceedings:
(x) taxing Party and Party Bill of Costs on default judgments and uncontested matters (involving exercise of discretionary powers taken by appointed official but where no formal hearing is usually required) through reference to appropriate Tariff set out in Judicature Act and performing quasi-judicial functions such as swearing oaths, etc.,
(xi) exercising signing authority for and issuing legal documents such as Write of Summons, as well as certain documents which
are legally binding such as Default Judgments, Mortgage Foreclosures, Writs of FiFa, Writs of Possession, Subpoenas,
etc.
(xii)assisting legal profession, general public in enquiries at counter or by telephone, providing information on Statutory requirements and procedurse in the Courts office; swearing in witness for Special Examiner's office: composes and signs own correspondence on matters such as fee payable or court documentation procedures;
(xiii)keeping an accurate list on a strip-index of all Supreme Court matters set down for trial!
(xiv)preparing the Supreme & County Court lists and forwarding to the appropriate parties as required;
(xv) making pre-trial appointments for the Supreme Court Justice;
(xvi)assieting the Local Registrar in calling cases for the Supreme Court Sittings;
(xvii)typing for the Local Registrar, S.C.O., County Court Clerk
and Surrogate Court Registrar e.g. correspondence, memoranda, statistical returns as required; answers enquiries from Judges
re. documentation, e.g. divorce;
(xviii)providing in the absence of the Deputy and Local Registrar technical guidance, as requested to one casual employee engaged in processing applications at the counter and performing general office duties; signing applications, Orderm, Judgements pas[s]ed by casual clerk, occasionally reviewing same for completeness, correctness, etc;
(Xix)co-signing with Local Registrar and/or Deputy cheques for payment out of the Local Registrar's account money in Court Account.
(XX) interviewing and assessing French fee for service applicants
for bilingual capability only as required;
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(xxi)keeping an accurate list of the moveable assets in the Local Registrar's Office and Judge's Office;
2. Other related duties as:
15%- assuming responsibility for the operation of the office in the absence of the Deputy and Local Registrar; - assisting in making verbal appointments or preparing formal notice of appointment for requests for Examinations in person or by mail maintaining diary of appointments, amending for re- scheduling as required; - assisting with preparation of Probate Orders in absence of the Counter Clerk or in peak workload periods; - assisting Deputy in other. aspects of the Courts office and providing for Court lists, Preparing Monthly Statistical Returns and Typing Attendance Reports in her absence: - providing for all aspects of Surrogate Court matters in counter clerks' absence; signing certificates etc. requiring statutory signing authority: - keeping an accurate listing of outstanding (over 6 months) custody and access cases as required under the Children's Law Reform Amendment Act.
4. SXILLS AND KNOWLEDGE REQUIRED TO PERFORM THE WORK
Responsible related clerical experience: thorough knowledge of Rules of Practice and office procedures governing Supreme and County Courts and general knowledge of Surrogate Court Procedures. Good knowledge of relevant statues of Ontario & Acts e.g. Judicature Act, Mortgage Act, Construction Lien Act, etc. and ability to interpret and apply same:
Ability to deal effectively with the legal profession and the public. Effective interpersonal and written and oral communication skill8 in both French and English thoroughness, :initiative, co-operativeness, judgement and typing ability.
In addition to the filing of the Job Specification itself, the
evidence in this proceeding includes considerable discussion of the
extent and manner in which the Grievor carried out, at the material
time, the responsibilities set out in the Specification. Before
turning to the points of contention, it may be noted that the
Grievor's testimony indicated that she discharged virtually all of
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the responeibilities set out in the Specification. The only
exception pertained to items xiii to xvi where, as a result of
procedural changes that are irrelevant to the present dispute, the
Grievor's involvement in such matters is not precisely that stated
in those paragraphs of the Specification.
The issues which divide the parties are best considered in the
light of the Class Standard itself (filed as Exhibit 4 in this
proceeding) which sets forth the criteria for distinguishing
between the levels of Deputy 1 and Deputy 2. For ease of
reference, numbers have been added to the statement of Principal
Activities relating to Courts Administration, this being the area
of activity in which the Grievor is engaged. The Class Standard
provides as follows:
Y. -ION OF JUSTICE SE-
This series covers positions of Deputies in the offices of Sheriffs! and officials of the supreme, County and Surrogate Courts, where the responsibilities of the positions do not include line supervioion of support staff.
These employees are appointed as Deputies by Order-in-Council and report directly to the official in charge of the appropriate function. They exercise authority as official reprasentatives of the appropriate senior official to varying degrees.
Allocation to the appropriate level in the series is governed
by the nature and scope of authority delegated.
The series is concerned with two main functions:
(a) The t County or District. within an assigned The senior official responsible for this function is the Sheriff.
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(b) Court Ac&&.@tration within an assigned County or District. The senior official responsible for this function may be the Local Registrar (Supreme Court), Surrogate Registrar or Clerk of the County Court (or one official may carry all three titles).
Princioal Activitieq:
The principal activities within each function are:
General Administration of Justice - Service of Writs, subpoenas, and related documents; execution of Court Orders, Writs of Fi~Fa and Possession etc.; attendance on Judges: staffing of Courts: selection of Jurors; administration of office accounts and other related duties.
courts Administration: 1. 2: Processing and signing of Writs, Orders, Judgements etc.: compilation and maintenance of Court lists for three Courts (Supreme, Surrogate, County). 3. Acting as Taxing Officer (party and party): 4. assigning (or assuming) duties of Clerk of the Court: 5. acting as commissioner of Oaths: 6. administration of office accounts and other related duties; 7. acting as Special Examiner when necessary.
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Definition of Terms:
Limited Auth rity means that authority is exercised within a limited field of activity (i.e. responsibilities cover only some of the principal activities listed abdve), OR authority is exercised under relatively close supervision on other than routine assignments. All junior (or second) Deputies are considered to exercise limited authority.
Full m means that responsibilities cover u of the principal activities listed above. Where more than one Deputy is appointed in an office, only the senior (or first) Deputy
is considered to exercise full authority.
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CLASS STANDARD:
DEPUTY 1. ADMINISTRATION OF JUSTICE
This class covers employees who exercise limited authority as
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defined in the Preamble. These employees may provide functional
guidanca to junior clerical staff but have no full line supervisory responsibilitiee.
Detailed knowledge and understanding of all statutory provisions relating to the appropriate function; ability to deal with public and legal profession with tact and confidence: personal integrity.
--------------------------------
CLASS STANDARD:
This class covers employees who exercise pull au- as defined in the Preamble. These employees may provide functional guidance to junior clerical staff but have no full line supervisory responsibilities.
As for Deputy 1, Administration of Justice, plus some administrative ability.
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As is seen, the Administration of Justice series and the two
standards in question pertain to both the "general administration
of justices or, one might say, the operation of sheriffe' offices
around the province, and to ~~courts administration**. The head
official in a local office of court administration such as that in
the Judicial District of Niagara South is the Local Registrar. In
the Welland office, there are two Deputy Local Registrars in
addition to the Registrar. The first is a Senior Deputy Local
Registrar who is classified at the level of Deputy 2. The other
is the Grievor who is, as the Jr. Deputy Local Registrar
(Bilingual), classified at the Deputy 1 level. As well, the
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Welland office employs a small number of full-time and part-time
staff including judges' secretaries, court reporters, counter
clerks and individuals who serve as court clerks.
The central point in dispute'between the parties relates to
the application of the concepts of "Limited AuthorityI and "Full
Authority" set out in the llPreambles segment of Exhibit 4. It will
be noted that the essential difference between th.8 Class Standards
for the Deputy 1 and Deputy 2 level is that the Deputy 1 is said
to exercise B1limited authority" whereas the.Deputy 2 is said to
exercise V*full authoritys. Thus it has been urged on behalf of the
Grievor in the present case that she does exercise full authority
with respect to all of the principal activities set out in the
section of the Preamble devoted to this topic. It is argued by the
Employer, on the other hand, that the Grievor has failed to
demonstrate that she meets the test of "full authority" but rather
exercises only "limited authority". As may be noted above, the
concept of the term slimited authority" is defined in the
alternative. One may be shown to exercise only slimited authoritylV
if authority is exercised only within a "limited field of activityI'
in the men388 that not all of the "principal activities** are engaged
in by incumbent. Alternatively, authority may be limited because
it is sexercised under relatively close supervision on other than
routine assignmentss. The principal argument made by the Employer
in the present case relates to the first of these tests. Thus, the
Employer argues that the Grievor does not engage in a substantial
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number of the *'principal activitiesI' set out in the Preamble.
Before turning to consider the precise points of disagreement
between the Employer and the Grievor with respect to the extent to
which the Grievor engages in the full list of ~~principal
activities~~, it will be useful to consider in a more general way
the distinction between the two alternate tests set out in the
definition in the Preamble of the concept of Wlimited authority".
simply relying on the plain meaning of the language used in the
Preamble, the concept of slimited authoritys appears to apply to
two different sorts of people. First, the concept applies to
individuals who have narrowly circumscribed activities and who may
not therefore require close supervision in the discharge of those
responsibilities. Second, the definition envisages a group of
people who have a broader range of activitiee but who require
~~relatively close supervision on other than routine assignments~~.
In other words, the concept of slimited authoritys may apply either
to a ~~specialist~~ who may work relatively independently or to a
*~generalists who requires supervision only in complex matters.
The concept of "full authoritys, on the other hand, denotes
a sgeneraliet (someone whose responsibilities cover u of the
principal activities listed above)", who is able to work without
the Wlose supervision on other than routine assignments~~ that is
required for an individual who has 181imited authority".
;.
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As is so often the case, it is of course difficult to
generalise successfully about the division of responsibilities that
may occur in variety of different locations across the province.
The nature of the staffing arrangements and the volume and
character of the workload in a particular location may msan that
the concepts and distinctions set out in a generalised standard
will not fit the local circumstances. Thus, a breakdown between
the *'relatively independent specialists and the generalists who
require some supervision~~, on the one hand, and "the generalists
who do not require such supervisions, on the other, may make a good
deal of sense in a large and complex Court office, but may not
easily apply to the breakdown of responsibilities at the working
level in a much smaller office. As will be seen, it is our view
that this is indeed a problem in the present case.
As we have indicated, the principal point of differenca
between the parties relates to the question of whether the Grievor
is truly a sgeneralists. It is thie point which creates division
between the parties and not the question of whether the Grievor is
properly classified as having slimited 'authorityI' because she
allegedly requires %lose supervision on other than routine
assignmentss, because there is no persuasive evidence before us in
support of the proposition that the Grievor does require
Velatively close supervision~~ on any of the areas of her
responsibility.~ Indeed, although the Employer included an
allegation that such supervision was required in its initial
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"Statement of Facts” (filed as Exhibit 3), that allegation was
effecti\*ely abandoned in the early stages of this proceeding and,
in our view, rightly so. Accordingly, we turn to the task of
determining the extent to which the Grievor has engaged in some or
all of the sPrincipal Activities~~ set forth in the Courts
Administration section of the Preamble portion of Exhibit 4. Those
principal activities, again, are as follows:
-:
1. Processing and signing of Writs, Orders, Judgements etc.:
2. compilation and maintenance of Court lists for three
Courts (Supreme, Surrogate, County).
3. Acting as Taxing Officer (party and party):
4. assigning (or assuming) duties of Clerk of the Court:
5. acting as Commissioner of Oaths:
6. administration of office accounts and other related
duties:
7. acting as Special Examiner when neceseary.
It is the Grievor~s evidence that she participates in all of
these activities. In her evidence, she offered examples of what
she understood to be the performance of tasks in each of the seven
areas. Further, more general evidence of her role as a
~~generalist~~ was supplied by the fact that a significant portion
of her time, at least 1.3 hours per day is spent assuming
responsibility of the entire office in the absence of the Deputy
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and Local Registrars. Further, as the only bilingual staff person,
the Grievor must be prepared to provide virtually all of the
services provided by the office in the French language. Though,
as we shall see, the Grievor does not in fact provide every service
made available by the office, there is nonetheless evidence in the
record in these proceedings to support that the Grievor is, broadly
speaking, a sgeneralist~~ as we have used this term in this
discussion. The Employer contests, however, the evidence relating
to Principal Activities numbered 3, 4, 5 and 6. Indeed, it is
evident simply from the face of the Job Specification that the
Grievor's involvement in activities numbered 1 and 2 is
uncontentious. Although the Employer initially contested the
Grievor's allegation that she acts as a Special Examiner in the
manner intended by Item 7, the Employer ,ultimately conceded that
the Grievor did perform this responsibility from time to time as
_ required. There can be no doubt of the Grievor’s legal’ capacity
to serve as a Special Examiner. Section 104 of the Courts of
Justice Act, 1904, S.O. ,1904, c. 11, as amended, confers such a
power on every slocal registrar and deputy 'local registrar".
Accordingly, the area of dispute in the present case is narrowly
focused on the four remaining items in the list of *'Principal
Activitiess.
Item 3-pertains to the assessment of what might be referred
to as statements of account or bills arising from ~legal
proceedings. The Court Official charged with the responsibility
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or vetting and approving such statements, formerly referred to as
a Taxing Officer, is now referred to as an Assessment Officer.
Again, there can be no doubt but that the Grievor as a Deputy Local
Registrar enjoys an appointment as an Assessment Officer. Such
authority is sxplicitly conferred upon local registrars and deputy
registrars by Section 103 of ths Courts of Justice Act,, 1984. The
area of contention relates to the question of whether the Grievor
truly engagss in the work of an Assessment Officer as indicated in
item 3. It may be noted that item 3 refers to the work of a Taxing
Orricsr on "party and party" matters. Although a full discussion
of the assessment or taxing of what are,
in efrect, lawyers' bills
would unattractivsly complicate the present discussion, it may be
said, in gsnoral terms, that there are two different types of
assessments that might occur. The first, and simpler, type can be
done over ths counter, as it were, in a relatively routine manner.
The itsms claimed may be compared against a tariff or schedule of
fees and, if the amounts claimed are those approved in the tariff,
ths claim will bs allowed. The sscond catsgory of assessment
involves a rathsr more complex process. With certain types of
assessments, it will ‘bs necessary to convene a hearing and,
essentially, adjudicate a disputed claim with respect to the amount
bsing claimed in the bill or statement of account. Such hsarings
are 1awYsrlY in nature in the senss that they involve the
application of ths rules of evidence, may require the writing of
written rsasons, and may result in a decision which is then
appealed to a higher level of adjudication within the court system.
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The individual making such determinations must be familiar with a
body of jurisprudence relating to the question of costs and will
perform, in this limited setting, what is essentially a judicial
function.
We refer to these two different types of assessments,
for present purposes, as 11simple18 as opposed to 8Vcomplex'8
assessments. We are satisfied that the Grievor is involved
principally, if not exclusively, in the making of simple as opposed
to complex ~assessments. What is unclear, however, is the extent
to which complex assessments are envisaged by item 3 in the list
of Principal Activities.
The complicating factor is this. Two of the witnesses
presenting evidence on behalf of the :Employer identified three
different types of taxations, party and party, party and party on
a solicitor - client basis, and solicitor - client assessments.
The first type is typically routine, normally arising from a
default judgement and handled on an over-the-counter basis. The
second two categories are normally complex and may result in the
conduct of a hearing. It is unclear, however, whether the
reference in item 3 to "party and party” embraces types 1 and 2 or
merely type 1. Unsurprisingly, the Employer argues that types 1
and 2 are included and that the Grievor does not engag? fin type ,2.
It is argued on behalf of the Grievor, on the other hand, that item
3 refers only to type 1 and that, in any event, the Grievor has on
occasion handled a type 2 matter though, to be sure, not of a kind
leading to a full-blown adjudication. According to the evidence
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led in this proceeding, most complex assessments are handled by the
Local Registrar himself. However, the Senior Deputy Local
Registrar is also engaged, though to a much more limited extent,
in the conduct of complex assessments. What appears to be quite
clear in the present case, is that the Grievor is not asked to
handle complex assessments on a regular basis. Thus, it cannot be
said that she is required to do complex assessments and does them
"under relatively close supsrvision.88 Complex assessments are
apparently a principal rssponsibility of the Local Registrar
though, to be sure, the Senior Deputy undertakes them to some
extent. Against this background, we must determine whether the
Junior Deputy exercisss authority with~respect to "party and party"
assessments. It is our view that ths Grievor participates
sufficiently in the work of a "Taxing Officer (party in party)"
that she cannot be said to be excluded from this particular
"Principal Activity". On the other hand, we are satisfied that she
is not fully sngagsd in the type of party and party assessment work
that is expectsd of ths Senior Deputy Local Registrar. We shall
return to this point.
1tsm 4, relating to the assignment or assumption of
responsibilities of a court clerk is also contested by the
Employer. We are satisfied, on the evidence before us, that the
Grievor is involved to some extent in this activity. The work of
the court clerks is normally assumed by part-time employees. On
the other hand, the task is performed by the Local Registrar
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himself on what might be referred to as special occasions.
Occasionally, the Grievor has been asked to sit in for the Local
Registrar on such occasions. Further, the evidence before us
indicates that the Grievor has in the past occasionally and, more
recently, routinely made assignments of tasks to the part-time
employees engaged as court clerks. There is no reason to believe,
we add, that either the assignment of such task’s or the assumption
of such responsibilities are themselves duties. of considerable
complexity. We are satisfied that if the Grievor, at the time of
the grievance, engaged sporadically in these activities, she did
so without any need for relatively close supervision.
Item 5 relating to the performance of the responsibilities of
a Vommissioner of OathsV1 is also contested by the Employer. The
principle basis for the Employer's attack on this point relates to
the fact that the Grievor has no formal appointment to the office
of the ~~Commissioner of Oaths" as such. Although this is true, it
is argued, on the Grievor's behalf, that she possesses all of the
powers of a Commissioner of.Oaths with respect to the types of
documents which she is required to handle. Thus, section 105 or
the Courts of Justice Act,
1994 provides as follows:
tion of Oaths
105. Every officer of a court has, for the purposes of any matter before him or her, power to administer oaths and affirmations and to examine parties and witnesses
Again,, there is no question, on the evidence before us, but that
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the Grievor does in fact exercise this power to administer oaths
in the course of discharging her responsibilities. Accordingly,
our conclusion on this point is similar to our conclusion with
respect to item 3. That is to say, though we believe that the
Grievor is Sufficiently involved in the work of a Commissioner of
Oaths within the context of the court proceedings subject to her
attention that it cannot be said that her range of responsibilities
does not extend to this particular Principal Activity. It is
nonetheless true that she does not have all of the powers of a
Commissioner of Oaths and thus does not appear to discharge all of
the responsibilities that might be required of a fully qualified
~~Commissionsr of Oathse. Thus, while on the one hand the Grievor
cannot be said to be excluded from this principal activity, neither
can shs be said to shoulder all of the responsibilities that may
be discharged by a Commissioner of Oaths.
The final item contested by the Employer is item 6 which
pertains to the administration of office accounts and other related
duties. The Grievor's l vidsncs on this point rests on her
involvement in the handling of moneys in what might be described
as her over-the-counter work and, moreover, on her role as a
signing oiiiosr with respmct to certain accounts maintained by the
Office OS the Local Registrar. Thu., Exhibit 0 is a letter dated
November 4th, 1906, identifying the Grievor as one of the signing
officers on a series of accounts held in the name of the Local
Registrar at a local branch of the Canadian Imperial Bank of
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Commerce. There is no doubt that the Grievor was in fact involved
in the administration of accounts in the sense that she was
involved in authorising deposits and withdrawals into various
accounts in accordance with applicable rules and policies within
the office. In his evidence, however, the Local Registrar
attempted to draw a distinction between activity of this kind and
a "genuine administration II of office accounts which was, in his
view, the responsibility of another member of the staff~who worked
in the area of office administration. That other member of the
staff, it should be added, was not the Senior Local' Deputy
Registrar. Our view is that the evidence before us does not
establish that full responsibility for the administrative work
involved in maintaining such accounts is the nature of the activity
~being referred to in item 6. Thu., we are persuaded that the
Grievor's involvement in the handling of and approval of various
entries pertaining to the administration of office accounts must
be considered to.be the exercise of an authority with respect to
the administration oft office accounts and other related duties.
In summary then, it is our conclusion that the Grievor does
in fact exercise authority with respect to each of the Principal
Activities identified in the Courts Administration section of the
Preamble portion of Exhibit 4. This finding, when coupled with
our finding indicated earlier in these reasons to the effect that
the Grievor does not function under Velatively close supervision@V
lead us to the conclusion that the specific responsibilities
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assigned to the Grievor and the manner in which she is supervised
do not meet the definitions set out in the Preamble for the concept
or "Limited Authority". This conclusion, especially when
considered in the light of the fact that the Grievor, on a regular
and routine basis, assumes responsibility for the operation of the
office in the absence of both the Local Registrar and the Senior
Deputy leads us to the conclusion that the Grievor is not properly
classified at the level of Deputy 1.
On the other hand, we are not satisfied that the Grievor's
authority extends to all of the activities in each of the seven
Principal Activities to the extent that appears to be expected of
a Senior Deputy Local Registrar. Keeping in mind our findings with
respect to items 3 and 5, it is our view that the Grievor is
sufficiently involved in those Principal Activities, that she must
be considered to be a 8'generalistB1 in a sense that lifts her out
of the Deputy 1 level. And yet, we are not persuaded that she
enjoys full authority with respect to all of the possible
activities within each of these two categories in the manner
expected of the Senior Deputy. we should note that there appears
to be no difference between the Senior and Junior Deputies with
respect to their reporting rslationships. They both report to the
Local Registrar. Purthsr, according to the Standard - and we have
heard no evidence to the contrary - there does not appear to be
any difrerencs in terms or supervisory responsibilities.
Nonetheless, we are satisfied that there is some difference between
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the nature of the responsibilities assumed in some categories of
Principal Activities by the two positions. 'In particular, the
Senior's involvement in complex assessments introduces a range of
difficulties and a requirement for training and expertise not
precisely paralleled in the Junior's position. We are frank to
concede that if forced to choose between Deputy 1 and Deputy 2, we
should choose the latter. It is our view, however, that neither
accurately captures the Grievor's set of responsibilities.
Accordingly, this is, in our view, an attractive case for the
application of the doctrine developed in the important decision in
the Ontario Divisional Court in OPSEU and Carol Barrv et al. v. Tha
Crown in Riaht of Ontario (Winistrv of Communitv and Social
Services) 607/05, unreported, to the effect that the proper remedy
to be awarded by the Board in circumstance8 such as these is to
require that the position of Jr. Deputy Local Registrar (Bilingual)
be properly classified by the Employsr. The Employer does.not
contest the positions taken by the Union nor by the Grievor that the
remedy should be awarded effective twenty days prior to the riling
of the Grievance.
The Board remains seized of jurisdiction to provide whatever
assistance may be necessary to the parties in implementing this
decision.
Dated at Toronto this 22rd day of November 1990.
-.
I. Cowan Member