HomeMy WebLinkAbout1989-1077.Taylor.90-05-16 ', ONTA RIO EMPLOYES DE LA COURONNE
CF~O WN EMPLO YEE~ DE L'ONTA~'O
GRIEVANCE CQMMISSlON DE
SETTLEMENT REGLEMENT
, ~'~ BOARD DES GRIEFS
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1077/89
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLENENT BOARD
BETWEEN:
OPSEU (Taylor)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
- and -
BEFORE: J.W. samuels Vice-Chairperson
G. Majesky Member
I. Cowan Member
FOR THE K. Whitaker
GRIEVOR: Counsel
Ryder, whitaker, Wright and Chapman
Barristers & Solicitors
FOE THE J. Saunders
EMPLOYER: Counsel
Hicks Morley Hamilton
Stewart Storie
Barristers & Solicitors
HEARING: March 28, 1990
Some time ago, the grievor received an overpayment of salary. The
Ministry is now making deductions from her salary cheques in order to
recapture the amount overpaid. The grievor claims that the Ministry
should be estopped from reclaiming the money, because representations
were made to her that the excess payments were proper, and, relying on
these representations, the grievor made various financial expenditures and
commitments.
The grievor has been employed by the Ministry since 1979. By
1985, she had risen to a Secretary 4 position, which was excluded from the
bargaining unit. Then, in 1985, this position was discontinued. The
grievor applied for a posted position as a Probation and Parole Secretary in
the Cambridge Probation Office and was successful. This position was
classified as Secretary 3. The grievor commenced in the job on May 12,
I986.
The grievor was informed that her salary would be red-circled at the
Secretary 4 level, and that she would not receive merit increments, until
the Secretary 3 salary reached her red-circled level, at which time she
would receive the appropriate salary as a Secretary 3.
In September 1987, the grievor received a large retroactive payment
in her pay cheque. She was very surprised and immediately phoned the
Ministry's payroll office in Toronto to say that there must have been some
mistake. The clerk on the other end of the line went away for a moment to
check on things and returned to tell the grievor that there had been no
mistake. The money was the grievor's.
In fact, we now know that there had been a mistake. Through a
clerical error, the grievor was being treated as if she was entitled to salary
at the OAG 8 level (Secretary 4 had become OAG 8 by this time), and the
payroll office gave her a retroactive payment for all of 1987 and thereafter
paid the grievor as if she was an OAG 8 (the Secretary 3 level had been
converted by this time to OAG 6).
3
In mid-March 1989, Mr. R. Dawson, the Ministry's Director of
Human Resources Management, wrote to the grievor to inform her of the
error and to claim back $3357.18. After some correspondence concerning
the terms of repayment, the Ministry commenced deducting $43.04 per
weekly pay cheque. The gfievor's position in the correspondence was that
she was unable to meet these payments, preferring to pay back $20 per pay
cheque. In her grievance, the grievor claims that she should not have to
pay back anything.
The law in this situation is fairly clear. Where money is paid
because of a mistake of fact, generally the receiver must repay the money,
either because this is the equitable thing to do, or because there is
considered to be an implied promise to repay. However, where the
receiver has materially changed her circumstances as a result of the receipt
of the money, so that it would be inequitable to force restitution, this
obligation to repay may be relieved. The authorities in this area were
reviewed extensively by the Supreme Court of Canada in Rural
Municipality of Storthoaks v. Mobil Oil Canada Ltd. (1975), 55 DLR (3d)
1. And for an example of the application of the Storthoaks principles in a
context similar to ours, see Re Ottawa Board of Education and Federation
of Women Teachers' Associations (1986), 25 LAC (3d) 146 (P. Picher),
In our case, the grievor argues that she has materially altered her
circumstances in reliance on the Ministry's payments to her and their
assurance that the monies were properly.paid. In particular, she says that
she and her husband (an OPP officer) took on three significant obligations
and made a significant RRSP contribution, which they would not have done
if they'd known that the Ministry would 'reclaim over $3000. Firstly, in
1988, she and her husband, together with another couple, arranged to have
a device patented and assumed a mutual obligation to pay legal fees of
I IIIIII I
4
$5000. Secondly, in early 1989, she and her husband traded in an old car
for a newer one, and assumed a loan of $6000 payable over more than
three years. Thirdly, in February 1989, she and her husband purchased an
above ground pool for $3650 and borrowed money to pay for it.
Fourthly, her husband made a $1000 spousal RRSP contribution in
February 1989.
Then, in March 1989, the Ministry informed her that her pay cheque
had been too hrge for some time. Her pay cheque would now be reduced
to the proper amount, and she would have to repay the overpayment of
over $3000 by payroll deduction.
In our view, coming when it did, just after the assumption by the
grievor and her husband of two loans (for the car and the pool) which
depended on her continuing to earn what her pay cheque was showing up
until then, this announcement by the Ministry was pretty hard on the
grievor and her family. It was not possible to simply mm the clock back
and return to the old car and a pool-less backyard. The grievor did try to
cancel the pool contract and, when this failed, she made inquiries about
selling the pool, but these too came to naught. In these circumstances, it
was inequitable for the Ministry to demand $43 from each pay cheque.
The grievor's offer of $20 per cheque was reasonable.
Bearing in mind that the grievor will have had the use of the
Ministry's money interest-free for some years, we will not order any
return of monies to the grievor, but we will order that, henceforth, the
Ministry can deduct no more than $20 from each of her bi-weekly pay
cheques until the money which was overpaid has all been repaid to the
Ministry, with no interest.
5
We will retain our jurisdiction to determine any further matters
relating to this situation, in the event that the parties are unable to agree on
all the details of the repayment plan.
Done at London, Ontario, this 16th day of t~ay ,1990.
~,.'
I. Cowan, Member