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HomeMy WebLinkAbout1999-1375.Lariviere.00-05-12 DecisionONTARIOEMPLOYÉS DE LA COURONNE CROWN EMPLOYEESDE L’ONTARIO GRIEVANCECOMMISSION DE SETTLEMENTRÈGLEMENT BOARDDES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8TELEPHONE/TÉLEPHONE,(416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396 GSB # 1375/99 OLBEU # OLB043/99 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees Union (Lariviere) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Daniel A. HarrisVice Chair FOR THE Craig Flood GRIEVORCounsel Koskie & Minsky Barristers & Solicitors FOR THEMicheal Sherrard EMPLOYERCounsel Ogilvy, Renault Barristers & Solicitors HEARINGApril 28, 2000 AWARD [1] This matter involves a claim for disability benefits by the grievor, Gerald Lariviere. It originally came on for hearing in Guelph, Ontario on February 3, 2000. On that day, the parties, the Liquor Control Board of Ontario and the Ontario Liquor Boards Employees' Union entered into various discussions in order to narrow the issues before the Board. [2] There were two preliminary matters addressed that day. The first related to a purported expansion of the grievance by the union. The second was an objection by the employer to the arbitrability of the grievance. Seemingly, this is the first grievance under the 1998- 2000 collective agreement calling into question the non-payment of benefits. It was common ground between the parties that no objection to arbitrability of such matters could be raised under the previous collective agreements. The employer now says that such objections do lie, and it squarely raised them in this matter. [3] The hearing adjourned on February 3, 2000, after the Board took jurisdiction, admitted exhibits into evidence and heard brief opening statements. The matter was scheduled to resume on April 3 and 28, 2000. It was anticipated that the Board would hear the parties' submissions on the arbitrability issue, provided the parties had been able to resolve certain conditions precedent. The hearing date of April 3, 2000 was adjourned. When the hearing resumed on April 28, 2000 the employer submitted that the Board's jurisdiction in this matter had been ousted as a result of the union having withdrawn a claim for medical expenses in a different matter arising in Ottawa. [4] The following excerpts from the relevant correspondence sets out the current issue between the parties: March 16, 2000 Counsel for the Employer to Counsel for the Union: Also as discussed, the employer will be taking the position' at arbitration that the grievance is inarbitrable. This was the position the employer took in response to the grievance. I would appreciate it if you would provide me with particulars of the Union's position with respect to arbitrability and specifically whether the Union is alleging that the Employer has not provided coverage as negotiated and agreed to. Finally, 1 am providing you with a copy of three pages excerpted from the Master Insurance Policy. I draw your attention to page 2, paragraph (c) which provides that in the event that application is filed more than 31 days after the date an employee becomes eligible, proof of insurability will be required. March 21, 2000. Counsel for the Union to the Registrar, Grievance Settlement Board: The Union requests leave to withdraw the above captioned grievance. March 31, 2000. Counsel for the Employer to counsel for the Union: This will acknowledge receipt of your letter dated March 21, 2000 advising the Grievance Settlement Board of your intention to withdraw the above noted grievance. The employer wishes to advise that it is their position that the unilateral withdrawal of the grievance constitutes either estoppel or res judicata in the event similar grievances have been or will be filed. As a result of the unilateral withdrawal, the employer will be taking the position at any arbitration dealing with a similar grievance that the withdrawal was with prejudice, and that any similar matter is to be res judicata and/or the Union is to be deemed estopped from bringing a second grievance on the same claim. [5] Union counsel sent reply correspondence dated April 6, 2000 which rejected the employer's assertions. [6] The instant grievance and relief claimed are as follows: Statement of grievance: I hereby grieve that the employer has violated the c.a., Art. 20 and any other applicable articles in the c.a., CECBA and OLRA Also see attached letter. Settlement desired: To be on LTIP from day one of disability. [7] The letter attached to the grievance reads as follows: February 10, 1999 STATEMENT OF GRIEVANCE: On behalf of the Union and Mr. Gerrard Ladviere without prejudice to any position in any other legal proceeding past or present and/or contemplated, we hereby grieve that the Employer has violated the Collective Agreement and, without limiting the generality of the foregoing, Article 20 thereof, in that the Gdevor has not received long term income protection benefits notwithstanding that he/she has been totally disabled within the meaning of Article 20 of the Collective Agreement. SETTLEMENT DESIRED: 1.A declaration that the Employer is bound to the Collective Agreement; 2.A declaration that the Employer has violated the Collective Agreement as alleged herein,. 3.An order that the Employer provide to the Gdevor long term income protection benefits provided in Article 20 of the Collective Agreement, to the extent that the Gdevor has not received such benefits; 4. Such further and other relief as may be appropriate in the circumstances. We have been instructed to refer this matter to arbitration unless the grievance is satisfactorily resolved. [8] The text of the Rhonda White grievance in Ottawa reads as follows: Statement of grievance: Failure to provide services as agreed to article 20 of the collective agreement.My husband's prescriptions & medical expenses have been refused by ins. Comp. I have contacted H.R. and there has been no attempt to correct it. Settlement desired: I would like the same results as any other group Ins. Policy coverage. I want all of our medical expenses paid. All of the expenses that have been refused and all of future expenses covered. [9] The employer argued that the withdrawal of Ms. White's grievance in the Ottawa proceedings either estopped the union from continuing with the instant grievance or rendered it res judicata. It said that there are three conditions which, when met, give rise to such an estoppel, or, alternatively, to the application of the doctrine res judicata. First, the matter must be between the same parties. Second, the matter must be identical in both proceedings, and third, the matter must have been brought for the same object. [10] The employer proposed that the Board deal with its objection on the basis of the documents set out above. It was the union's position that the employer should be put to the strict proof of its case. It was ultimately agreed that the matter would be argued from the documents, provided that, if there were a prima facie case made out, then the employer would be put to the strict proof of its case. [11] In my view, there is no prima facie estoppel or res judicata on the face of the documents. Here the parties are identical, being the union and the employer. However, the matters at issue are not identical, nor are the objects for which the grievances were brought. Rather, the grievances were filed on behalf of two different individuals claiming different benefit coverage, one for medical expenses, one for disability benefits. [12] Whether characterized as res judicata or issue estoppel, it cannot be said that the decision to withdraw the Ottawa grievance is sufficiently final or judicial to bring the instant proceedings to a halt. These are not consecutive proceedings where the prior abandonment, settlement or withdrawal can be taken as determinative of an issue joined between the parties. These are essentially contemporaneous, distinct and different matters in which the employer contests arbitrability. [13] Further, nowhere on the face of the documents is the nature of the employer's objection clearly stated. Inarbitrability of a grievance can be raised on numerous grounds, and the grounds are not clear on the face of these documents. The withdrawal, settlement or abandonment of a grievance cannot necessarily be taken as aquiesence in the opposite party's view of arbitrability for all other matters and all other grievors. The principle, as elaborated by the jurisprudence, is that a party may not bring forward another complaint over the same fact situation after that fact situation has been settled, abandoned, withdrawn, or finally determined by a competent tribunal. The settlement, abandonment, withdrawal or determination of a specific matter brings that matter to an end. That does not prevent another, different matter from being litigated. Where the subsequent matter involves the application of similar legal principals to a similar fact situation the result may be easily predicted, unless the prior determination is manifestly wrong. None the less, it is litigable. [14] The principal is grounded in fairness. When a matter is finally concluded, it is reasonable to act on that basis. Doing so will generally result in detriment to the opposite party should the same matter be brought on again. This detrimental reliance on the finality of the previous proceedings estopps the subsequent proceedings. Also, where there can be said to have been a prior judicial determination of the matter it cannot be brought on again in a different guise. [15] The instant matter is at a stage where there are active discussions between the parties as to the expeditious hearing of a serious policy issue between them. That issue is one of considerable currency in the labour relations community, being the arbitrability of benefit coverage claims. In my view the circumstances of the Ottawa withdrawal do not oust the jurisdiction of the Board to deal with this matter. There is no evident detriment to the employer. Even if the bare withdrawal amounted to a representation on which the employer relied, the union promptly and clearly rejected that interpretation. There was, in effect, no opportunity for the employer to have suffered any detriment in this matter. There is also no specificity to the reasons for the withdrawal as would permit a finding that the union intended to withdraw its defence to the employer's objection to arbitrability in this ongoing matter. That is to say, nothing in the documents conveys to the employer the notion that the union agrees with the employer's views on inarbitrability. There is nothing in these circumstances on which the employer can detrimentally rely, nor has there been a final determination of the inarbitrability issue by the Board. [16] Accordingly, the employer's objection to the Board proceeding with this matter is denied. Dated at Toronto this 12th day of May, 2000. Daniel A. Harris, Vice-Chair