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HomeMy WebLinkAbout1991-2373.Dalton.95-07-31 ONTARIO EMPLOYg$ DE LA COURONNE CROWN EMPLOYEES DE L 'ONTAR/O ~" GRIEVANCE COMMISSION DE SEttLEMENT R~=GLEMENT BOARD DES GRIEFS 180 DUNDAS STREETWEST, SUITE 2100, TORONTO .ON MSG 1Z8 TELEPHONE/T~L~PHONE : (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILE/T~L~COPIE : (416) 326- ¥396 GSB # 2372/91 OPSEU # 92B051-053 IN THE MATTER OF AN ARBITRATION onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Dalton) Grievor - and - The'Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE: M. Gorsky Vice-Chairperson I. Thomson Member D. Clark Member FOR THE K. Whitaker GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors · FOR THE M. Fleishman EMPLOYER Counsel Crown Law Office - civil Ministry of the Attorney General HEARING October 21, 1994 May 26, 1995 DECISION The Grievor, Monica Dalton, who was at all material times employed as part of the unclassified staff as a Subpoena Typist at the Crown Office section of the Ministry of the Attorney General at · 60 Queen Street West (Old City Hall) in the city of Toronto, filed three grievances, as follows: 1. Grievance dated September 19, 1991 (Exhibit 2) which contains the following statement of grievance: ~ I grieve that I have been unjustly denied benefits contained in the Collective Agreement because the employer has or had improperly assigned me to the unclassified staff. The settlement desired was: That the employer properly assign me to the classified service so that I may receive all benefits due me retroactive to the first date of improper assignment. 2.' Grievance dated October 3, 1991 (Exhibit 3) which contains the following statement of grievance: I grieve that I have been terminated without just cause. The settlement desired was: That the Employer reinstate me to the position of Subpoena Typist forthwith. 3. Grievance dated October 3, 1991 (Exhibit 4) which contains the' following statement of grievance: I grieve that I have been harassed by the employer. The settlement desired was: That the Employer reinstate me to the position of Subpoena Typist immediately and cease from this harassment. The Grievor, as an unclassified employee, worked under a series of six employment contracts from April of 1988 to October 4, 1991. The contract which ended in October of 1991 was not renewed and the Grievor's employment then ended. Over the course of her employment, she worked in a number of positions at a variety of locations: 60 Richmond Street East, Old City Hall and College Park, but most of the time she worked as a Subpoena Typist at Old City Hall. In September of 1991 the Employer posted four classified Subpoena Typist positions that involved the same duties and responsibilities as those carried out by the Grievor in her unclassified position of Subpoena Typist. She was permitted to and did apply for one of the posted positions and was informed that she was one of the unsuccessful candidates. Referring to the grievance contained in Exhibit 2, alleging that the Employer had improperly assigned the Grievor to the unclassified staff, counsel for the Union stated that if the matter is heard on its merits evidence would be called from and on behalf of the Grievor to establish that the issues involved in that grievance went beyond the statement contained in the grievance. .i 3 We were told that evidence would also be called from the Grievor with respect to another issue based on an allegation that the Employer.had failed to provide benefits which she was entitled to as an unclassified employee under the collective a~reement in force at the time the grievance was.filed. The provision referred tO was that relating to unclassified .employees {art. 3.9), the agreement being the one in force from January 1, 1989 to December 31, 1991. We were informed that the Grievor would testify that she had not received O.H.I.P. coverage for the first 17 months of her employment. We were also informed that at the time the Grievor filed Exhibit 2, she was in receipt of coverage and was not "out of pocket" as a result of 'the alleged violation, but that she wished an explanation as to why she had not received coverage. A further issue that she claimed was subsumed in Exhibit 2, although not specifically there referred to, related to her claim that the Employer had failed to credit her with certain~short term sickness benefits in accordance with art. 3.8.1 of the collective agreement. Counsel for the Union stated that the Union's attempt to "reconstruct" facts relevant to this aspect of the grievance indicated that the Grievor was owed five days' compensation with respect to five sick days taken by her and for which she had never received compensation. Counsel for the Union acknowledged that as a result of certain, court decisions that part of the grievance relating to an allegation that the Grievor had been improperly assigned to the unclassified service would not be proceeded with. (Parry, Singh, Porter and Lavoie). Accordingly, the Union would be limiting its claims under the said grievance to the two claims above outlined, which, although not specifically referred to in the wording of the ~rievance, were nevertheless said to form part of the ~rievance before the Board. Counsel for the Union indicated that Exhibit 3 intended to raise two issues, as follows: 1. Termination without just cause based on the theory that the' Grievor's appointment to the unclssified service was incorrect and that she was, in fact, a classified employee. 2. The Grievor also challenged the.'competition, above referred to, takin~ the position that it was conducted in bad faith, with a broad alle~ation being made that she had been treated unfairly throughout the competition process. Reference was made to the fact that Nancy Beattie, one of the panel members in the competition, discriminated a~ainst the Grievor by not giving her an adequate opportunity to respond to questions. The Grievor was also raising an issue with respect to "nepotism" which was said to have affected the decision to appoint one of the suCcessful candidates who was a family member of one of the employees in the office. This fact was said to have "coloured the competition". 5 The Union intended to a~gue that the Employer should be held to the same standards as those applicable to a classified employee in carryin~ out.its responsibilities pursuant to art. 4 of the collective agreement .as they relate to the management of a competition. Referring tO Exhibit 4, counsel for the Union submitted that this grievance involved an allegation of unjust discipline. Reference was made to verbal discipline said to have been meted out to the Grievor in September of 1991 by Nancy Beattie. It was alleged that the disci~!ine represented ~a sanction against the Grievor for allegedly making dispara~in~ comments to some of her co-workers. It was the position of the Grievor, on the merits, that the discipline had been meted out without just cause. Counsel for the Union emphasized that in each of the 't'hree grievances the Grievor wished to raise issues that went beyond the explicit statements contained on the' face of the grievances.- We were informed that the Grievor's evidence would be that she was unfamiliar with the collective agreement and relied on the assistance of her steward, who was also the President of the local at the time, to draft the ~rievances. She believed that the ! grievances, as filed, covered all of her real complaints, even though they did not specifically set them out. She also believes that her actual concerns were discussed at the second step meeting as well as at the pre-hearing, and that, accordingly~ the Employer 6 was made aware of her real concerns and responded to them, thereby waving any objections that might have been made. Counsel for the Employer stated that the expanded grounds referred to by counsel for the Union included some matters that were addressed at the second stage of the grievance procedure and some that were addressed at the pre-hearing. It was his position that all of the matters raised, which were not even remotely referable to the language of the grievances, were objected to by the Employer as being out of time and the E~ployer refused to respond to them as being part of the original grievances. Counsel emphasized that the Employer still objects to all of the additional. grounds now being raised and submitted that there is no arbitrable grievance with respect to them before the Board. It was submitted that each of [he grievances were clearly limited to the issues set out on the face of those grievances and none of them reflect'any of the additional issues that the Grievor now intends to raise. ~ It was submitted that these additional concerns which are not shown on the face of the grievances ~ught to have been discussed with the Union when they were filed and should have been included in the language of the grievances. 7 It was the further position of the Employer that it was unnecessary to consider whether the additional grounds which the Grievor intends to rely on are properly before the Board because of what was referred to as the Employer's first preliminary objection to considering the grievances on their merits. REliance was had on the procedure of this Board in terminating 'grievances because they had -remained on the inactive list for more .than one year. Reference was made to Exhibit 5, being a memorandum to a number of ministries and other entities such as the Liquor Control Board of Ontario, dated November 15, 1993 from Joan Shirlow, Registrar of the Board. The memorandum entitled "Termination of Cases"' states: In accordance with Mr. Shime's letter of September 13, 1991 please be advised that the following cases from the Inactive List have been terminated. Attached to and forming part of Exhibit 5 is ~a list of terminated files. Under the heading Ministry of the Attorney General, the grievances before use are shown as having .been terminated. Reference was also' made to Exhibit 6, being a letter of June 12, 1992 from counsel for the Union to counsel for the Employer in connection with the subject grievances, which letter is as follows: .This is to confirm that this matter be adjourned pending' the disPosition by the Divisional Court decision of the judicial review applications in Singh, Perry, Porter, and Lavoie which are scheduled to be heard in the Fall of this year together. I have so advised the Grievance Settlement Board. Exhibit 7 is a letter from counsel for the' Grievor to the Registrar of the Board, dated June 12, 1992, in connection with the subject grievances, which letter states: This matter was scheduled to go before the Board on Tuesday, June 16, 1992. The parties have agreed to adjourn this matter pending the Divisional Court decision in the judicial review application of Sin~h, Perry, Porter and Lavoie. Reference was made to Exhibit 8, being an order of the Court of Appeal for Ontario dated May 25, 1993, which denied leave to appeal to that court from the decision of the DiviSional Court dated February 11, 1993, the decision being with respect to the' Lavoie case. The only case with respect to which leave was sought of those referred to in Exhibits 6 and 7 was Lavoie. The next significant dante is December 16, 1993, when counsel for the Employer received a telephone call from counsel for the Union indicating that it was the intention of the Union to now proceed to have the grievances heard by the Board. It was agreed that there was no other communication on behalf of the Union to the Employer or to the Grievance Settelement Board from the time of the original ~dj~urnment in .order to permit the judicial review applications referred~to and the telephone call of December 16, 1993. It is on the abOve facts that the Employer relies in raising its first preliminary objection to arbitrability. It was submitted that the Board had a policy with respect to 9 adjournments, which was referred to in Exhibit 5. We take it that this policy is reflected in the letter of September 13, 1991 from the Chairperson of ~he Board, which letter was not filed wi~th.'us. It was submitted on behalf of the Employer that when the hearing of the grievances was adjourned and the matter was not activated within a one year period, the Board terminated the grievances in accordance with its policy. Counsel for the Employer again referred to Exhibits 6 and 7, which stated the Union's advice that it was requesting an adjournment of the grievances until the cases referred to had been. disposed of by the DiVisional Court. Reference was made to Exhibit 9, being a memorandum'from the' Chairperson of the Board to ~ number of entities including the Employer, under the heading "Re: Adjournment/Inactive List" which is as follows: Attached is the latsst copy of the Adjournment/Inactive List.. This is to advise that all cases appearing on this list for more than one year, up to and including February 15, 1993, will be closed by the Board on March 15, 1993 without further communication to the parties. It is the responsibility of the parties to advise the Board in writing to re-activate a case. 10 Part of Exhibit 9 is a document entitled "The Adjournment/Inactive List (effective September 1, 1989)." There is a notice under the heading as follows: NOTICE: THIS LIST CONTAINS CASES THAT HAVE BEEN SCHEDULED FOR HEARING AND HAVE BEEN ADJOURNED AT THE REQUEST OF THE PARTIES. THE LIST WILL BE PUBLISHED EVERY SIX MONTHS. WHERE A CASE APPEARS ON THE LIST FOR MORE THAN A YEAR THE BOARD'S FILE WILL BE CLOSED AND THE PROCEEDINGS IN THAT C~SE WILL BE DEEMED TO BE TERMINATED. IT IS THE RESPONSIBILITY OF THE PARTIES TO HAVE CASES REMOVED FROM THE INACTIVE LIST AND EITHER PARTY MAY .DO SO BY ADVISING THE BOARD IN WRITING OF THEIR DESIRE TO ACTIVATE THE FILE FOR EITHER PRE-HEARING OR HEARING AS THE CASE MAY BE, OR TO HAVE THE CASE REMAIN ON THE LIST PENDING THE OUTCOME OF ANOTHER MATTER. REQUESTS TO ACTIVATE MUST BE MADE WITHIN k YEAR FROM THE DATE THAT THE CASE APPEARS ON THE INACTIVE LIST. LEGEND: ADJ. - ADJOURNED 'S' - SETTLEMENT 'W' - WITHDRAWN N/A - NOT AVAILABLE O/C - OUTCOME SD ~ SINE DIE PEND - PENDING Part of Exhibit 9 is a list of cases, including those of the Grievor, with an entry under "Reason for Adj. [Adjournment]" of "Adj. [Adjourn] Pend. [Pending] O/C of Jr of Lavoie." It was submitted by Counsel for the Emp%oyer that when a matter is adjourned and not activated within the one year period, the Board will terminate the grievance in accordance with the said policy. 11 It was submitted, in accordance with Exhibit 9, that the grievances (Exhibits 2, 3 and 4) ceased to be on the inactive list and ceased to be cases which could be brought before the Board for adjudication. Our attention was specifically drawn to the warning to the parties contained on page 3 of Exhibit 9, with the consequences spelled out: "Where a case appears on the list for more than one year the board's file will be closed and the proceedings in that case will be deemed to be terminated." Counsel for the Employer referred to Exhibit 10, being a memorandum to the Employer, among others, dated August 15, 1993, from the ChairPerson, being the next semi-annual notice to the parties in the same form as Exhibit 9, containing the same warnings. Item' number 308 in Exhibit 10 is made up of the Grievor's grievances showing the original hearing date to be June 16, 1992, the date of the adjournment, being June 12, 1992, .with the reasons for the adjournment stated to be the same as set out in Exhibit 9. Counsel for .the Employer also referred to the fact that the matter referred to and the reasons for the adjournment had been dealt with by the Court of Appeal, as above noted. It was further submitted that if the Union intended, at that time, to reactivate the grievances for hearing it should have done so, and that it had sufficient time to do so before the publication of the list and prior to the declaration of termination in Exhibit 5. In 12 accordance with Exhibit 10, the grievances were deemed to be terminated as at September 15, 1993, without any further communication to the parties. Counsel for the Employer submitted that pursuant to s. 20(8) of the Crown Employees' Collective Bargaininq Act in force at the time, the Board has jurisdiction to determine its own practice and procedure and that in accordance with the provisions of s. 19(1) of that Act, the Board can determine whether a matter is arbitrable. This was said to be a case where the Board had issued a policy statement concerning the arbitrability of grievances, and because of the Union's failure to comply with'the policy, it should not be permitted to proceed with the grievances: it had failed to reactivate them as required by the policy. It was further submitted that this was not a case where the Employer had to show prejudice. Rather, this was said to be a case where the Union would have to demonstrate a satisfactory basis to relieve it from the consequences of delay. Counsel for the Employer also stated that the Employer had, after receipt of notification that the grievances were terminated, destroyed its primary grievance file:with respect to the matters relating to the grievances. He added, however, that most of the file could be reconstructed, but that there was no way to be 13 certain if all of the documents that were in the file could be reproduced. In the circumstances, the Employer might be prejudiced as a result of its justifiable destruction of the file. In any event, counsel for the Employer pressed the point that there was no need for him to show that the Employer was, in fact, prejudiced as a result of the delay. Reference was made to Re Dhanota and U.A.W. Local Number 1285; Sheller-Globe of Canada Ltd. (1983), 42 O.R. (2d) 73 (Div. Ct.), being a judgement of the Divisional Court on an application for judicial review of the decision of the Ontario Labour Relations Board, the application to that board being with respect to an alleged failure to represent employees in the bargaining unit: R.S.O. 1980 c.228 s. 68: a trade union which is entitled to represent employees in the bargaining unit ... shall not act in a manner that is arbitrary, discriminatory, or in bad faith in the representation of any of the employees, in the unit .... Section 89(4) of the Labou~ Relations Act provided'for the hearing by the OLRB with respect to alleged contraventions of the Ac___~t.. At the hearing, the respondents took the position that the board should not entertain the application in view of the delay in making it. The application was dated two years and seven months after the event complained of, and the board, in its reasons, stated (quoted at p. 74 of Sheller-Globe): In the circumstances, the board ruled that it would first entertain the evidence of the complainant with respect to the issue of delay, prior to enquiring into the merits of the complaint. [The complaint involved an alleged failure to process a grievance based on the discharge of the complainant.] In the Sheller-Globe case, at p. 75, there is an excerpt from the decision of the OLRB: In circumstances such as the present, the onus shifts to the complainant to satisfy the board that there are compelling labour relations reasons to cause the board to exercise its discretion and entertain the complaint under s. 89. At p. 76 of Sheller-Globe, the court decided: The board has the right to lay down its own procedure. It decided, in this case, to commence with an investigation of the delay ~in filing the complaint and the reasons therefore. In so doing, it was exercising the discretion we have found is given to it under s. 89(4). We see no lack of natural justice or even of fairness in the procedure it adopted and, that being so, this court should not interfere .... The Employer submitted that this Board ought to follow the same procedure as was followed in Sheller-Globe. Counsel for the Employer referred to .Brand, 1516/87 (Dissanayake), where the grievor grieved that he had been improperly identified as a surplus employee in violation of art. 24 of ~he collective agreement. At pp. 3-4, the Board noted that it had been granted jurisdiction under ~s. 11(8) [sic] of CECBA to determine its own practice and procedure, which in its view included the discretion to refuse to entertain grievances which have been referred to the board but not pursued within a reasonable time and without reasonable excuse. Reference was made to Sheller- Globe as being a case where the Divisional Court upheld a corresponding jurisdiction claimed by the OLRB under a similar statutory provision. In the Brand case, the Board referred to the employer's contention that the grievance must be deemed to have been withdrawn because of an Administrative Note issued By tke Board on July 13, 1984, and later restated by the Chairperson by memorandum dated January 22, 1988, addressed to the participants before the Crown Employees' Grievance Settlement Board, wh£ch reads: The parties, are reminded of an Administrative Note forwarded to them by the Grievance Settlement Board on July 13, 1984, which is as follows: "Adjournments Sine Die" From and after August t, 1984 the par~ies in agreeing to an adjournment will be required to specify whether the matter is to be immediately re-listed for hearing, or whether it is to 'be adjourned sine die with no new hearing date set until such time as one of the Parties requests that it come on for hearing. Where the parties fail to indicate which type of adjournment they are requesting, the Board will assume the matter is to be adjourned sine die. Where a matter is adjourned sine die, the Board's general practice will be to formally' advise the parties that the adjournment has been granted but for a one-year period only, and that unless within that time one of the parties requests that the matter be proceeded with, it will be deemed to be withdrawn. Once the Board has so notified the parties, the onus will rest on the party seeking to.re-open the matter to so notify the Board within the one-year period. In any case, where a party feels that a one-year limitation period would be inappropriate, at the time the sine die adjournment is requested that party should so advise the Board setting out the reasons in support of its position.. There will be a grace psriod for new cases of thirty days from the date of this letter before strict compliance is enforced. The administrative staff of the Board have been instructed to ensure the enforcement of the aforesaid practice. ~ The basis for the Board's ruling, in Brand: that it ought not to exercise its discretion, was based on the fact that the conditions specified in the note for its application had not been met. The note refers to a general practice of the Board, where a matter is adjourned sine die, "to formally advis~ the parties that the adjournment has been g~anted but for a one-year period only, and that unless within that time one of the parties requests that the matter be proceeded with, it will be deemed to be withdrawn." The note then goes on to state that "Once the Board has so notified the parties, the onus will rest on the party seeking to re-open the matter to so notify the Board within~the one-year period." At p. 5 of Brand, the Board notes that there was no suggestion that that the Board notified the parties of a one-year limitation period as contemplated by the note. The Board added: ... It is clear from a plain reading of the note that such receipt of notice is a~ondition precedent to the application of the one-year rule. (Contrast the po.licy of the Ontario Labour Relations Board with regard to adjournment sine die as stated in its Practice Note No. 14). Counsel for the Employer contrasted the facts in Brand with those in the case before us, and submitted that there was~no basis for our refusing to exercise our discretion as there was in Brand. 17 Reference ~was als0 made to King-Marshall, 1249/90 etc. (Barrett), which concerned a preliminary issue raised by the employer that the grievances were "deemed terminated" by the Grievance Settlement Board on March 15, 1992, because, after .two early adjournments, they remained on the inactive years for 13 months. Reference was made to the Board having done so pursuant to an administrative policy which had been in existence in one form or another since 1984. At p. 1, the Board stated: [.. FOur times a year the Board sends to all of the parties an adjournment/inactive list containing all of the cases that have been adjourned sine die and the reasons'for their adjournment. There is an explicit warning attached to the list in the following form: 'RE: ADJOURRMENT/INACTIVE LIST' Attached is the latest copy of the Adjournment/Inactive List. ~his is to advise you that all cases appearing on the list for more than one year, up to and including February 15, 1991, will be closed by'the Board on March 15, 1992 without further communication to the parties. It is the responsibility of the parties to advise the Board in writing to re-activate a case. NOTICE: THIS LIST CONTAINS CASES THAT HAVE BEEN SCHEDULED FOR HEARING AND HAVE BEEN ADJOURNED AT T~E REQUEST OF THE PARTIES. THE LIST WILL BE PUBLISHED QUARTERLY. WHERE A CASE APPEARS ON THE LIST FOR MORE THAN A YEAR THE BOARD'S FILE WILL BE CLOSED AND THE PROCEEDINGS IN THA~ CASE WILL BE DEEMED TO BE TERMINATED. IT IS THE RESPONSIBILITY OF THE PARTIES TO HAVE CASES REMOVED FROM THE INACTIVE LIST AND EITHER PARTY MAY DO SO BY ADVISING THE BOARD IN WRITING OF THEIR DESIRE TO ACTIVATE THE FILE FOR EITHER PRE-~EARING OR HEARING AS THE CASE MAY BE, OR TO HAVE THE CASE REMAIN ON THE LIST PENDING THE OUTCOME OF A/~0THER MATTER. REQUESTS TO ACTIVATE MUST BE MADE WITHIN A YEAR FROM THE DATE THAT THE CASE APPEARS ON THE INACTIVE LIST. The two grievances in King-Marshall appeared on the Adjournment/Inactive List four times ..in 1991-92, with a notation that they were "adjourned pendin~ the outcome of Barber et al.." On March 31, 1992, the Registrar of the Board sent the parties a list of cases that had been terminated due to operation of the policy, and these grievances appeared on that list. In August 1992, a union representative wrote the Registrar requestin~ that the grievances be scheduled for a hearing. The Registrar did so, and the matter came on before a panel of the Board on September 30, 1992. In that case the union stated that the ~rievances "slipped through the cracks" and that it had never formed the intention to abandon or withdraw them. Counsel for the union argued that the Board should not give effect to its administrative policy that deemed the grievance to be terminated. There was no defect in the grievance procedure set out in the collective a~reement and no breach of any time limits therein. Counsel for the union also stated that the Crown Employees' Collective Barqaining Act makes no mention of deemed terminations for delay, but, on the contrary, section 19 of the Act provides that the Grievance Settlement Board "after giving full opportunity to the parties to present their evidence and to make their submissions·, shall decide the matter... 19 " Counsel.for the union, while acknowledging that the policy was administratively efficient, warned against applying it in every case and submitted that the Board should not restrict its decision by a rigid adherence to policy. 'Counsel for the union also referred to s. 20 of CECBA, which creates the Board and sets out its powers. In particular, s. 20(8) (now s.48(1) S.O~ 1993, c.38) states: "The Grievance Settlement Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions ... " Counsel for the union in King-Marshall, while acknowledging the right of the Board to determine its own procedure, emphasised the requirement that the Board allow the parties to present their evidence and to make their submissions. While stressing the mandatory requirement for a hearing in sections 19 and 20 of CECB_~A, counsel for the Union conceded that the Board had jurisdiction to dismiss grievances for unwarranted delay but emphasized that this should only be done after hearing evidence about the causes of the delay and any possible prejudice to the employer arising out of it (at p. 3). As in this case, the employer in King-Marshall, in reliance upon the deemed termination, destroyed most of its file. The employer also conceded that it would be able to reconstruct it and defend the grievances if necessary, although with some considerable 20 difficulty. Counsel for the union argued that in the absence of real prejudice to the employer arising out of the delay, the 9rievor's right' to a hearing should not be impaired by delay (Freedman, GSB #12/84.(Samuels)). Counsel for the employer in King-Marshall also relied upon Brand. At pp. 4-5 of King-Marshall, the Board states: in our view, the Brand panel did consider the propriety of an administrative note governing our practice and procedure. The panel squarely framed the' issue as to whether or not it should exercise its discretion to adopt and enfOrce the administrative note. There was no suggestion of rigid adherence to a policy or an assertion that we are automatically bound by it and that our discretion is thereby circumscribed. We are not bound by the administrative policy, but we speak for all p~nels of.the Board when we say that it is an eminently sensible and fair mechanism for disposing of slumberin9 cases which .might otherwise linger for years in a state of suspended animation. The parties receive four written warnings of our intention to terminate the grievances, unless a simple request is made to keep them alive. This has the effect of lifting the onus to show prejudice from the party seeking to dismiss a grievance for delay and placing it on the party who has neglected to respond to urgings that it make a decision to proceed or terminate. It is open to a party to show cause to a panel of the Board why a deemed termination pursuant to our procedure would be unjust in special circumstances, but "slipping through the cracks" is not a special circumstance which would warrant us exercising our discretion to reinstate a neglected 9rievance. Arbitration is the process for the expeditious determination of disputes between the parties. It is our duty as a Board to expedite the determination of grievances to the extent our resources allow. To do so we have adopted a practice or procedure for disposing of cases not actively pursued so that our time and energy can be spent on the active ~rievances. Counsel for the Employer emphasized that by-the time of the decision in King-Marshall (November of' 1992), the policy had been restated so that cases that were not reactivated within the time period provided were deemed to be terminated not merely deemed to have been withdr&wn. Counsel for the Employer noted the union arqument in Kinq- Marshall~ that it was not its intention to abandon or withdraw the grievances and that the matter had somehow "slipped through the cracks," and added that the'Employer assumed this was the case in the matter before us. Notwithstanding the absence of real prejudice to the employer in Kinq-Marshall , the Board still held that it was up to the union to establish special circumstances that would warrant the Board'excusing the delaY. It concluded that there were no special circumstances demonstrate~o Counsel for the Employer reiterated its pos~ti°n with respect to the statements contained in the grievance. Its position was that the Union could not enlarge claims contained in Exhibits nos. 3 and 4. Exhibit no. 3 claimed termination without just cause, and tha~ was the only matter that could be adjudicated with respect to that grievance. Inasmuch as that aspect of the grievance has bean withdrawn, nothing further remains before the Board for adjudication. In connection with Exhibit 4, it was submitted that there is no such thing as a grievance based .on harassment, and there remains no issue before the .Board arising out of this 22 grievance. It was also submitted that in the case of Exhibit 2, no issue remained before the Board arising out of the alleged improper assignment to the unclassified staff. The Employer reiterated its position that it was too late to raise the alleged imposition of discipline, the raising of this new matter having been objected to at the preliminary stages of the grievance. Reference was made to Exhibit 11, being the Record Of Employment form prepared by the Employer for UIC purposes, wherein the reason shown under comments is "end oF contract." Reference was made to the Union's claim that OHIP benefits were not maintained for the Grievor during the first 17 months of her employment. Even if the Grievor's !position is accepted as valid, she was out of time for filing such a grievance with reference being made to the provisions of articles 27.2.1 and 27.2.3. In Exhibit 11, the first day worked is shown as April 5, 1988, the last day worked being shown as October 3, 1991. Referring to attendance credits claimed by the Grievor, counsel for the Employer stated that it did not know when the five sick days occurred, and, even if the Griev0r's claim was accepted, the timeliness arguments might apply depending on when the sick day claim arose. It was also submitted that the "attack" on the competition process was "clearly" a new grievance not referred to on the face of any of the other grievances. Counsel for the Union submitted that it had never received Exhibit 5, being a list of cases from the Inactive List that had been terminated, includin9 the 9rievances of'the Grievor in this case~ Counsel for the uniOn acknowledged that Exhibits. 9 and 10 had been received by the Union but stated that they had not been forwarded by the Union to the Grievor or to the office .of cOunsel for the Union for review and response. ReferenCe was made to the fact that the Union had, during the summer and fall of 1993, in order to control costs, taken the position that~cases should not be scheduled for hearing or, where possible, that they should be adjourned. As pa~t of the strategy to control costs, no requests were made to reschedul~ outstanding matters. Throughout this period the Grievor took the Position that her grievances should be scheduled at the earliest time and she never communicated-an intention to abandon or withdraw her grievances. The same position was taken in connection with the intention of the Union. 24 AS Mr. Whitaker, counsel for the Union, had received neither Exhibits 9 nor 10, he arranged for a hearing date in December of 1993 with Mr. Fleischman, counsel for the Employer. Mr. Whitaker stated that a hearing date was arranged for in December of 1993, but he understood that Mr. Fteishman was not then aware of the Board's notification that the grievances were deemed to be terminated. Mr. Whitaker stated that he was unaware, until he received Mr. Fleischman's letter of January 14, 1994, that the grievances were listed in the Registrar's memorandum of November 15, 1993 as being among the cases from the inactive list that had been terminated. We were asked to regard the Kinq-Marshall case (that was based on the Brand case) as being incorrectly decided~ It was submitted that the Sheller-Globe case decided by the OLRB, which was relied upon in King-Marshall, should not have been trea~ed as analogous for the purposes of analysis in the latter case. We were invited to accept an alternative analysis whereby the directive of the Board would be viewed as an attempt to create a practice whereby the Board could rule on cases on the list to see if they had been withdrawn. This was regarded as a mere administrative device to discover if a'matter had, in fact, been withdrawn. We were asked to regard the Board practice as amounting to a request to the parties to respond, so as to indicate if a 25 matter had been withdrawn. We were also asked to rely on the jurisprudence of the Board that was concerned with whether a matter had in fact been withdrawn by a pa~gy. This jurisprudence was said to turn on whether there was evidence to show that the Union and the Grievor had truly intended to withdraw a grievance. At most, the Board's practice was said to create a rebuttable presumption that a matter had been withdrawn. It was submitted that the Union could avoid the presumption by establishing that the failure to respond to the notices did not amount to an intention to withdraw and that it could call evidence to explain what had happened. It was further submitted that neither'the Union nor the Grievor had acted in any way so as to show an intention to withdraw the grievances. Referring to the Sheller-Globe case, counsel for the Union submitted that reliance on that case was inappropriate because the statutory mandate of the OLRB was different. It was submitted that the involvement of the OLRB in a section 68 application under the Labour Relations Act was different from the case of a grievance filed under a collective agreement. Reference was made to the statement, at p. 74 of Sheller- G.lobe, where the Board considered its obligations under then s. 89{4) of the OLRA: 89(4) ... the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer., employer's organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the ... trade union ... shall do or refrain from doing with respect thereto... It was submitted that under s. 89(4) the OLRB first had to decide whether to exercise its jurisdiction, whereas, in the case before us there is no such statutory direction, and this Board should merely exercise its discretion based on correct labour relations policies, such as whether the delay caused real prejudice to the Employer. It was submitted that the Sheller-Globe case was concerned with first deciding threshold questions arising under s. 89 and did not deal with considerations that would affect other administrative tribunals. Reference was made to s. 19(1) of CECBA that requires the Board to give the parties a "full opportunity ... to present their evidence and to make their submissions [and to] decide, the matter .... It was submitted that the Union's position made sense given that s. 19 mandates that the Board decide differences between the parties arising under the collective agreement and that "its decision is final and binding upon. the parties .... " Counsel for the Union also submitted that the power of the Board under s. 20(8) of CECBA to "determine its own practice and procedure" is subject to giving "full opportunity to the parties to 27 any proceedings to· present their evidence and to make their submissions .... " Counsel for the Union submitted that the Board, in adjudicatin9 a grievance, must enquire as to the difference between the parties, whereas the OLRB, under s. 89 has a discretion to so enquire. We were asked to reject the'analysis in Brand, as the only authority cited by it for its decision wa~ Sheller-Globe. Counsel for~the Union asked us to reject King-Marshall, which~ although it did not specifically adopt the reasoning in Sheller- Globe, followed Brand which followed the analysis in Sheller-Globe. Counsel for the Union invited us to interpret the direction of the Board in the cOntext of cases decided by the Board and by other boards where the issue of delay involved an examination of the facts to see whether laches applied. Counsel 'for the Union referred to Re Parking Authority of Toronto and ~Toronto Civic Employees' Union Local 43, Canadian Union of Public Employees (1974), 40.R. (2d) 4~ (Div. Ct.). At p. 47-of the Parking Authority case, the court reviewed the doctrine 'of laches in the context of whether there has been such a delay as amounted to laches and noted the chief points for consideration: 28 (1) acquiescence on the plaintiff's part, and (2) any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the plaintiff has become aware of it. It is unjust to give the plaintiff a remedy where he has by his conduct done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect he has, though not waiving the remedy, put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches. It was submitted that in order for laches to apply on the facts before us, it would be necessary to show that the Grievor had acquiesced in the Ministry's breach of the collective agreement and that as a result of such acquiescence unfairness would be visited upon the Ministry. Reference was also made to Hughes, 17'2/92 (Barkett), where at, p. 6, the Board held that it would be premature to dismiss the grievance- for delay until it had heard the evidence. It held-that if the Grievor was successful in proving that he was so impaired by mental illness that he did not have the ability to compreh'end the consequences of his actions over a very'lengthy period of time, then the foundation for laches would not';have been made out. It was held further that it was only after hearing the evidence that the Board would be in a position to properly assess the extent of the prejudice to the employer caused by the delay. 29 It 'was submitted that laches was not a jurisdictional objection but went to the merits of the case, and it was necessary for the Employer to demonstrate that it had been prejudiced in its ability to present its case because of 'the passage of time. Counsel for the Union submitted that the Employer, by its 'own admission, could not meet the threshold if the case is heard on its merits. It was submitted that the Board should not rule on the question of delay until it has heard the evidence. Counsel for the Union submitted that the policy statement of the Chairperson, which~ could lead to inactive files being terminated, was merely a procedural device created to see whether certain grievances ~ad been' withdrawn, and that the Board's statutory obligation to enquire precluded a broader interpretation. It was put to us that.to give the Board's power~to structure practice and procedure the interpretation requested by the Employer would amount to jurisdictional error be¢auSe it would interfere with the mandatory enquiry as to whethe~ there had in fact been a withdrawal of the grievance by the Union. It .was argued that the most that the Board could do, utilizing its powers with respect to practice and procedure, was to create a rebuttable'presumption as to whether the matters had been withdrawn. 3O Reference was made to Loweth, 1668/87 (McCamus), where the employer argued that the grievance had been withdrawn and that such withdrawal was "final and irrevocable." The union argued that this was not the case. A letter had been sent to the acting Registrar of the Board by the union, which'is set out at p. 2 of Loweth: Please be advised that a hearing in this matter is no longer required, your file may be closed .... The employer relied on this communication, which was forwarded to the Deputy Minister of the employer as constituting an irrevocable withdrawal of the grievance. The Board, at p. 4, indicated that its examination of the arbitral jurisprudence satisfied it 'that a withdrawal, if effectively made, is irrevocable. ~ At p. 7, the Board stated its view that different considerations are brought to bear when: ... the union has not formulated an intention to withdraw a grievance but has accidentally'communicated an apparent intention to do so to the Employer. In such a case, the union is not attempting to act upon its second thoughts with respect to the legitimacy of a grievance it has withdrawn. Rather, it is attempting to peruse the merits of the grievance which it has not intended to withdraw. If the accidental communication resulted from a typographical or other clerical error, it would no doubt seem unjust both to the grievor and the Union that the mere making of a mistake of that kind should result in the suppression of what they view as a legitimate grievance. 31 Counsel for the Union also relied on Williams, 1607/86 Kaplan), where Loweth was followed (at p.14.and p. 19). Counsel for the Union characterized the requirement that the Union be able to rebut the presumption that the grievance has been withdrawn as bein~ based on inherent fairness, the absence of which would amount to a failure of natural justice. It was submitted that in this case~the Grievor was in even a better situatiOn than were the grievors in Loweth and Williams, because she never wrote a letter, nor was any letter written on her behalf withdrawin~ the grievance. Counsel for the Union, in response to the Employer's argument that there was no basis f6r a ~ri~vance based on harassment, indicated that while he agreed with that submission, argued that the Board had jurisdiction to find that the Grievor had been disciplined by what was referred to as. a verbal sanction that amounted to an act of discipline intended to correct what had been characterized as culpable behaviour. Counsel for the Union also 'responded. to the argument of counsel for the Employer concerning the attempted expansion of the ~rievances to claim certain OHIP benefits and to pay for certain short term sickness benefits, by saying that the objection to the expansion of the grievance by the Employer was made at the time of 32 the grievance procedure and at the pre-hearing but no objection was taken based on the grievance's being out of time, and we were asked to find that the Employer had waived any objection by taking a fresh step in the proceedings. Reference was also made to Chiasson/McDonald, 537/91 (Low). In that case the grievances filed by two grievors were identical: That I have been improperly denied overtime for December 1, 1990 and December 2, 1990. The employer made a preliminary objection that the Board was without jurisdiction to consider whether denial of overtime represented unjust discipline (as the union intended to do)' "as this argument was not expressed in the written grievances." At pp. 5-6, the Board stated: The Collective Agreement between these parties does not give employees any specific guidance as to how their grievances are to be framed. Grievors are laymen and it would not foster the interests of resolving disputes between the Union and the employer to insist that written grievances'be drawl/with the degree of specificity as to legal theory that would be expected of a pleading in a civil action. What is required is that the employer be put on notice as to the conduct, or circumstances of which the grievor complains in order that the employer be put on notice as to the case that it must meet. In my view, it is not necessary that the grievor advance in his written grievance every legal argument upon which he intends to rely at the hearing. In the instant grievances, I am of the view that the language used is sufficiently broad to permit the argument to be made that the denial of overtime was wrongful in that it consisted an unjust discipline. This is a matter of particularizing the complaint. It may equally encompass other arguments, which may or may not be meritorious, but I could not say that such an argument is a fundamental departure from the substance of the written grievance. 33 Counsel for the Union also relied on the further statements of th~ Board.found at pp~ 6-7: There is additionally the fact that in the circumstances before us, there is no element of surprise or prejudice to the Employer. Indeed, it is apparent that the Employer was put on notice at the earliest possible stage of this dispute of the gist of the Grievors' complaint by way of Ms. Chiasson's memorandum to Ms. Boivin dated November 23, 1990, a copy of which went to Mr. Streich..The Employer has been put on notice since~the first expression of the difference or complainu that it was the Grievors' theory that the denial of overtime was discipline. In such circumstances, it does not seem to me to lie in the mouth of the Employer to complain that it is caught by surprise as to the case it must meet. Even if the November 23, 1990, memo had not been delivered and there was only .the notice of this argument provided by counsel for the Union in September of 1991, I do not see how the Employer can be prejudiced. Six months have elapsed, giving time for the Employer to prepare its defence to the~ case, and there is no suggestion that any witnesses or documentary material relevant to the discipline issue have been lost or destroyed by reason of the Employer having believed that the case was about something different. Indeed, there is no suggestion that the Employer was ever under the impression that this grievance was about something other than discipline. The Union als0 relied on the final statement of the Board at p. 7: Had I been of the opinion that the grievance as presently framed was not sufficiently wide to include argument that the conduct constituted a discipline, I would be inclined to allow an amendment It was submitted that the Union had raised the'bad faith issue in the competition for the position sought by t'he Grievor in the course of the grievance procedure. Reference was made to Chiasson/MacDonald where the same situation was said to have arisen. 34 It was submitted that the parties had acknowledged that the Employer was aware of the Union position at the time of the pre- hearing. In his reply submissions, counsel for the Employer stated that when Exhibit 5 was prepared, although it was not sent to the Union, it merely recorded advice that a number of cases, including those of the Grievor, had been terminated from the Inactive List. He observed that Exhibits 9 and 10 had been received by the Union and represented warnings that the cases would be closed by the Board without further co~unication to the parties unless a written request was received to reactivate a case. It was the Employer's position; that it was up to the Union to comply.with the notice requirement to reactivate a case; that inadvertence was no excuse and did not amount to 'special circumstances within the meaning of KinG-Marshall. Counsel for the Employer also noted that it was irrelevant that Exhibits 9 and 10 might not have been received by the-Grievor because it was the Union that had carriage of the matter before the Board, and it was the Union that was responsible to advise the Board in writing in accordance with the policy. It was the Union's decision to adjourn the scheduling of grievances, and that such decision could not affect its obligations to comply with the policies expressed in Exhibits 9 and 10. All 35 the Union had to do was comply with the policy. A letter would have prevented the cases being removed from the list. Although counsel for the Employer ~acknowledged that the Grievance Settlement Board was not obliged to follow principles established before the Ontario Labour Relations Board, the policy of the Board in ~relation to Grievance SettlemenZ Board decisions requires that they be followed unless they are manifestly wrong, and i~ was submitted that this had nOt been shown to be the case. It was also submitted that as part of the jurisdiction of the Board, it was entitled to determine, pursuant to section 19(1) of CECBA= whether a matter was arbitrable, and that is what the Board was being requested to do in this case. Reference was again made to s. 20(8) of CECBA and to the statements relating to the Board's jurisdiction with respect to matters of practice and.procedure~noted in Brand at pp. 3-4. In this regard it was noted that the reference to s. 11(8) (of CECBA) at the bottom of p. 3 of Brand, -must have been an error and that the reference must have been intended to be made to s. 20(8). It was submitted that although the Sheller-Globe case was decided by the Ontario Labour Relations Board, s. 102(13) (now s. 104(13)) of the Ontario Labour Relations Act gave a similar power.to the Ontario Labour Relations Board as is given to this Board under s. 20(8). 36 It was submitted that the mandatory jurisdiction under s. 19(1) of CECBA makes the analysis of the Sheller-Globe case applicable in the case before us. It was submitted that the suggested purpose of the procedure put forward by the Union: that it was to assist in determining if a party wishes to withdraw a grievance, cannot be 'sustained. It was submitted that the real purpose is set out in Kin~-Marshall at pp. 4-5: In our view, the Brand panel did consider the propriety of an administrative note governing our practice and procedure. The panel squarely framed the issue as to whether or not it should exercise its discretion tO adopt and enforce the administrative note. There was no suggestion of rigid adherence to a policy or an assertion that we are automatically bound by it and that our discretion is thereby circumscribed. We are not bound by the administrative policy, but we speak for all panels of the Board when we say that it is an eminently sensible and fair mechanism for disposing of slumbering cases which might otherwise linger for years in a state of suspended animation. The parties receive four written warnings of our intention to terminate the grievances, unless a simple request is made to keep them alive. This has the effect of lifting the onus to show prejudice from the party seeking to dismiss a grievance for delay and placing it on the party who has neglected to respond to urgings that it make a decision to proceed or terminate. It is open to a party to show cause to a panel of the Board why a deemed termination pursuant to our procedure wOUld be unjust in special circumstances, but "slipping through the cracks" is not a special circumstance which would warrant us exercising our discretion to reinstate a.neglected grievance. Arbitration is the progess for the expeditious determination of disputes between the parties. It is our duty as a Board to expedite the determination of grievances to the extent our resources allow. To do so we have adopted a practice or procedure for disposing of cases not actively pursued so that our time and energy can be spent on the active grievances. 37 Counsel for the Employer submitted that the real purpose has nothing to do with intention, nor is it concerned with prejudice to the other side. It was submitted that the cases submitted by the Union were not applicable to the facts before us as they were not concerned with a practice established by the Board, nor are we concerned with laches in interpreting the policy. 'Dealing further with the subject of the change in grounds, it was submitted that there was no~hing 'in the language of the grievances which could in any way convey the larger intentions now raised on behalf, of the Grievor, it now being clear that the grievances as framed in Exhibits 2, 3 and 4 could not be proceeded with. Discussion and Decision We agree with the statement of the Board at pp. 4-5 of Ki~ Marshall set out at p. 36 of this Decision. Treating the Chairperson's note as representing the Board's administrative policy, that policy is "an eminently fair mechanism for disposin9 of slumbering cases which might linger for years in a state, of suspended animation." It is consistent with the Board's power to determine its own practice and procedure to establish means of dealing with such abuses of process as would result from an 38 inability to exert some control over the progress of cases referrred to arbitration. It only requires, a simple request to the Board to keep a §reivance on the list from being terminated. The parties receive four written warnings during the year of the Board's intenUion to terminate the grievances unless either.'of them notifies the Board in writing to re-activate a case as Provided for in the notice within a year from the date that the case appears on the inactive list. The Board clarified its policy to'exclude the possibility of its creating a mere rebuttable presemption when it provided that a case .caught by it would be "deemed to be terminated" and not "withdrawn." The Union and not the G~ievor is.a party before us. There was no lack of adequate notice or other unfairness to it. Exhibits 9 and 10 were received by the Union and represented clear warnings that the cases represented by the grievances would be terminated by the Board unless a written request was received to reactivate them. The Board's statutory power to regulate its practice and procedure under sec. 20(8) of CECBA allows it to insure that the arbitration process will be an expeditious means of determining disputes and is not inconsistent with the statutory right of the Union to "present [its] evidence and make" [its] submissions" before the Board decides the matter(s) before ,it under s. 19(1) of the Act. The Board can create fair mechanisms to "expedite the determination of grievances to the extent that [its] resourses allow." Placing a limit on how long a case can remain on the inactive list' without some indication that a party wishes to proceed with it does not prevent the Union from exercising its rights under s. 19(1), when a simple letter would prevent the case from being deemed "terminated." If the Board's policy violates the right of the Union to present i~s evidence and to make its submissions~ then so would the application of the doctrine of laches~ / At best this is another l'slipped through the cracks case" which did not cause the Board in King-Marshall to find special circumstances to permit it it to not follow the policy. As in Kin~-Marshall, we find no special circumstances that would cause us to rule otherwise. We do no~ regard the principle in King-Marshall to have been incorrrect~ The conclusion of tha Board in that case, although indirectly premised on Sheller-Globe, can stand on its own. The Board in KinG-Marshall relied on its power to determine its own practice and procedure and fully explained its reasons for following the administrative policy on the facts before it. We follow the policy for the same reasons. Even if we had concluded that Kin~-Marshall was wrongly dec~ded, we would not regard the error ~o'have been so e~regious as to cause us to refuse to follow 40 it - as we are obliged to do pursusant to Blake, which, incidentally, is another example of the Board detemining its own practice, in that case to avoid a fragmented and inconsistent jurisprudence. Although our above conclusions make it unnecessary to deal with the Employer's objections based on lack of timeliness in processing the grievances under the collective agreemnent, we note that the attempts by the Union to relate any of the additional bases for complaint to the language of the grievances leaves us unpersuaded that the expanded grievances can be related to the actual language employed in the grievances as filed. Although perfection in the drafting of grievances is not expected from lay]persons, and allowances must be made for their frequently lacking the expertise to say what they intend, there are limits to when it is possible to read an intention to express other complaints into the words actually used in formulating grievances. in this case it' is clear that .there is nothing in the grievance filed as Exhibit 2 that indicates an intention to 'grieve on any other basis than that the Grievor was improperly assigned to the unclassified service. Given the language used in the grievance, it is impossible to read in an intention to raise issues: 41 1. Relating to 0.H.I.P.. coverage under art. 3.9 of the collective agreement that the' Grievor, as an unclassified employee, would be entitled to. 2. Relating to the Grievor, as an unclassified employee, not receiving certain short-term sickness benefits u~der art. 3.8.1 of t~e collective.agreement. · Nor is there anything in Exhibit 3, even after it is given the most liberal interpretation, that would suggest that the Grievor was doing anything other than challenging the propriety of her being assigned to the unclassified service. The raising 'of an entirely seperate issue relating to the failure to properly conduct a competition for a position as a Subpoena Typist in the classified service represents a new and different complaint. The Grievance set out in Exhibit 4 is on its face, as was acknowledged by counsel.for the Union, incapable of succeeding as a grievance based on harassement. What the Grievor was really seeking, was placement within the classified service. This is clear from the relief requested. There was nothing in this grievance to suggest that the Grievor was 'seeking removal from her record of the imposition of discipline as a result of her having been given a verbal warning. 42 In fact, the focus of all three grievances, as can be seen from the relief requested in each case, is aimed at securing the Grievor placement within the classified service. Nor are we satisfied that the Employer either expressly, or by waiving its right to object to the enlargement of the grievances, impliedly consented to the purported attempt of the Union to raise the additional complaints that were being pursued on behalf of the Grievor. Even if we had the authority to allow the grievances to be amended to raise the the additional complaints, this is not an appropriate case to do so. For all of the above reasons, the grievancgs are denied. Dated at Toronto, this 31day of July, 1995. M.R. Gorsky - Vice-Chairperson D. Clark ~ M~mber