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HomeMy WebLinkAboutMorgan 17-03-061 IN THE MATTER OF AN ARBITRATION UNDER THE COLLEGES COLLECTIVE BARGAINING ACT, 2008 ~ BETWEEN ~ ALGONQUIN COLLEGE OF APPLIED ARTS AND TECHNOLOGY (“EMPLOYER or COLLEGE”) ~ AND ~ THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (LOCAL (“UNION”) ARBITRATOR: Deborah Leighton APPEARANCES: For the Employer Kecia Podetz, Emond Harnden LLP For the Union Morgan Rowe, Raven Cameron, Ballantyne and Yazbeck LLP A hearing was held in Ottawa in this matter on October 18, 2016 2 Submissions of the Parties [1] This decision addresses the college’s preliminary motion to bifurcate its proposed motion to dismiss the grievance as moot, from the merits of the grievance. The grievor has complained that she was not placed at the appropriate level of the pay grid in 1999 when she became a full-time professor; she seeks redress retroactively to 1999. [2] The college’s position is that Article 32.01 of the collective agreement requires that a complaint must be discussed with a grievor’s supervisor after the person learns of or ought to have learned of the complaint. And while the college is not disputing that the grievor may file this grievance, it maintains that any remedy can only be ordered for 20 days before the filing of the grievance. The grievance was filed on June 2, 2015. In counsel’s submission, since the grievor has been at the maximum step on the grid for almost four years, there would be no remedy. Thus, the issue before me is whether the preliminary motion on mootness would dispose of the matter and consequently, the motion to bifurcate should be granted. [3] The college cited Nova Scotia Police Association v. Amherst (Town) 207 L.A.C. (4th) 89 (2011) as authority for the test to be applied in deciding the question of whether it is appropriate to bifurcate a preliminary motion from a hearing on the merits. The board in Nova Scotia, supra, said that bifurcation might be appropriate where: a. The issues relating to the preliminary objection are clearly separate and distinct of the grievance; b. A decision on the objection would be dispositive of the entire grievance (that is, would eliminate the need for a hearing on the merits); and 3 c. Such a disposition would save significant amounts of time and resources that would otherwise be necessary to hear the matter on the merits (para 37). The issue on the motion for mootness is whether there would be any reason to provide a remedy beyond 20 days. If there is no remedy beyond the 20 days, the grievance is moot. Therefore, in counsel’s submission, considerable time and resources would be saved through bifurcation. [4] Counsel for the union agreed with the facts as outlined by the college, for the purposes of this motion and takes the position that the matter should not be bifurcated. Counsel cited Cargill Foods v. UFCW, Local 175 + 633 (2009) 185 L.A.C. (4th) 167 [Marcotte], for the principle to be applied in deciding whether to bifurcate a preliminary motion from a hearing on the merits of a grievance. Arbitrator Marcotte, quoting Arbitrator Thorne in Canadian Broadcasting Corporation v. CUPE (1991) 22 L.A.C. (4th) 9, stated that bifurcation should be considered after assessing whether it would be fair, practical and an economic use of hearing time, in all the circumstances. Arbitrator Thorne also opined that if the evidence on the preliminary can be dealt with in short fashion and it disposes of the matter, it makes sense to bifurcate. However, if the evidence of the motion substantially overlaps with the merits of the case, then bifurcation is not appropriate. Finally, he noted that procedural issues must be considered based on the allegations of the parties. [5] Here, the union argues that the evidence of the motion and the merits overlap substantially and consequently there is no practical or economic justification to split the case. The union alleges that the grievor did not know and was not able to know of the complaint until she 4 filed her grievance. If proven, the application of a remedy 20 days before the filing of the grievance would not apply. [6] Further, the union says that it will need to call evidence of the grievor’s application for a full-time professor position, her discussions at the time with the Chair on her salary and her ultimate placement on the grid in 1999. Other evidence which relates to both the motion and the merits include the difficulty of finding the grievor’s “calculation” sheet used to place her on the grid, and the history of the college’s approach to managing other retroactivity issues. [7] Thus in the union’s submissions it would be faster and lead to a more economic use of hearing time not to bifurcate. Decision [8] The parties agree that I have the discretion to decide whether to bifurcate the hearing on the merits from the motion that the grievance is moot. Having carefully reviewed the submissions of the parties, I find that I am persuaded by the union’s submission and that the grievance hearing should not be bifurcated. [9] Applying either the test in Nova Scotia, supra, or Cargill, supra, leads to the same conclusion. As Arbitrator Thorne noted in CBC, supra, as cited in Cargill Foods, a motion to bifurcate must be made on the allegations before me. Thus, whether it would be fair, practical and an economic use of hearing time depends on the evidence that will need to be 5 tendered for the allegations, whether admissible or not. Admissibility is a decision that comes later. The union is alleging that the grievor did not know and could not have known about her complaint until shortly before she filed her grievance. This will require substantial evidence which also pertains to the merits of the case. The evidence of the history of how the grievor was placed on the grid is also pertinent to the merits of her claim. Thus, there is substantial overlap in the evidence on the merits of the case. The issue of whether the grievance is moot is not discreet. [10] For these reasons, I hereby dismiss the college’s motion to bifurcate the hearing. Dated at Kingston this 6th day of March, 2017 Deborah Leighton _____________________ D.J.D. Leighton, Arbitrator