HomeMy WebLinkAbout1996-2804.Wilson.02-11-28 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2804/96
UNION# 97B307
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Wilson) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of Health) Employer
BEFORE RandI H. Abramsky Vice-Chair
FOR THE UNION Graham WillIamson
Koskie Minsky
BarrIsters and SOlICItorS
FOR THE EMPLOYER Andrew Baker
Counsel
Management Board Secretanat
HEARING January 24 and November 8 2002
2
AWARD
ThIS decIsIOn deals wIth a prelImInary motIOn made by counsel for the employer to dIsmIss the
gnevance before me on two bases (1) that It was not tImely filed, and (2) that It IS barred by a pnor
settlement.
Facts
On October 18 1996 the gnevor Douglas Wilson, filed the folloWIng gnevance
I gneve that because of the Inhumane way my Mimstry officIals and management
treated me dunng my Illness, I am holdIng them responsIble for me gOIng on L T I.P
and C.P.P dIsabIlIty I hold them fully responsIble for all the stress and harassment
whIch led to my M.I. [mental Illness] and severe mental depressIOn. AccordIng to my
doctors In recent medIcal documentatIOn I wIll never work agaIn. To be counseled and
rehabIlItated for any work wIll never happen because of my health.
It IS undIsputed that all of the alleged events whIch are the subJect of the 1996 gnevance - the
alleged IncIdents of Inhumane treatment, stress and harassment - occurred pnor to November 1988 In
a March 12, 2001 statement of partIculars, the events whIch are the subJect of the gnevance are set
out. Solely for the purposes of the Employer's prelImInary motIOns, those partIculars are accepted as
true
The partIes' also submItted two wIll-say statements, one by the gnevor and one by Don
Coutts, who has served In human resources wIth the Mimstry of Health and Long Term Care SInce
1973 Dunng the relevant penod, Mr Coutts served In a human resources capacIty for the Windsor
Central Ambulance CommumcatIOns Centre, at whIch the gnevor was employed. To the extent that
the two wIll-say statements vaned as to dates of certaIn events, the Umon agreed that Mr Coutt's
eVIdence should be preferred.
3
The partIculars, combIned wIth the wIll-say statements, show that the events whIch are the
subJect of the 1996 gnevance began In March 1986 when the gnevor learned that hIS then-four year
old son had a braIn tumor whIch reqUIred surgery The gnevor took tIme off work to attend the
surgery and was absent from March 19 to March 28 1985 Unfortunately the gnevor's son had to be
re-admItted on Apnl 12, 1985 because of a lIfe-threatemng complIcatIOn, and the gnevor took
addItIOnal tIme off work from Apnl12 to Apnl 28 1985 The gnevor requested compassIOnate leave
for hIS absences but that request was turned down on July 5 1985 A gnevance followed, whIch was
resolved through a settlement In June of 1986 Mr Wilson, who had used vacatIOn and lIeu tIme to
cover hIS absence receIved the vacatIOn tIme and credIts back.
In July 1985 the gnevor receIved a letter from hIS manager statIng that, although he realIzed
that Mr Wilson was under stress, he was concerned about hIS abIlty to attend work on a regular basIs
Mr Wilson spoke to hIS Umon about the letter a gnevance was filed and resolved at stage II of the
gnevance procedure on September 4 1985 The letter was removed from Mr Wilson's file
AccordIng to the partIculars, Mr Wilson was undergoIng tremendous emotIOnal stress due to
these proceedIngs and the harassment at work by hIS manager Mr Wilson's manager had refused hIm
earlIer ShIft changes and was pressunng hIm to take hIS lIeu tIme by June 15 1986 In vIOlatIOn of the
collectIve agreement. On May 12, 1986 the gnevor's supervIsor threatened hIm that management
would buIld a negatIve case on hIm to make It easy to suspend hIm.
On May 16 1986 Mr Wilson's doctors gave hIm a letter saYIng that he should not be workIng
due to "severe agItated depressIOn" and he remaIned off work untIl August 14 1986
4
He then sought compaSSIOnate leave under ArtIcle 30 of the collectIve agreement for one day
on October 9 1986 to accompany hIS son for aCT scan. In response, he was reqUIred to answer a
number of dIfferent questIOns about the legItImacy of hIS request by vanous managers before they
would consIder It. On January 19 1987 he was granted compassIOnate leave, but not under ArtIcle 30
(whIch was leave wIth pay) but rather under ArtIcle 54 (whIch reqUIred hIm to use hIS vacatIOn credIts
to pay for the leave) On February 3 1987 Mr Wilson filed a gnevance on thIS matter allegIng that
the demal of hIS request "for no reason" caused hIm "mental stress and anxIety" and has "made me
absent from work on sIck leave "
On August 13 1986 Mr Wilson filed a complaInt wIth the Ontano Human Rights
CommIssIOn agaInst hIS employer complaInIng of harassment by hIS manager because of hIS
handIcapped son The substance of the complaInt IS almost IdentIcal to paragraphs 2, 3 4 5 6 7 and
8 of the statement of partIculars filed In the Instant gnevance
On January 23 1987 an unfortunate IncIdent occurred at work dunng hIS ShIft for whIch he
was held responsIble His doctor removed hIm from work effectIve January 26 1987 By letter dated
February 3 1987 Mr Wilson was advIsed that a pre-dIscIplInary heanng would be held to advIse hIm
of the facts of the InVestIgatIOn concermng the IncIdent on January 23 1987 On February 6 1987
Mr Wilson went to the emergency room of the local hospItal due to depressIOn and anxIety and saw
the socIal worker The socIal worker Issued a report dated February 6 1987 whIch stated that the
gnevor's dIfficultIes at the workplace were caused by the "non-empathetIc" response of hIS needs
anSIng from hIS son's Illness
5
By letter dated February 13 1987 the Mimstry of Government ServIces and Employee
CounselIng dIsclosed (wIth Mr Wilson's consent) that he was a clIent of the VocatIOnal RehabIlItatIOn
Program In the Employee CounselIng ServIces and concurred wIth the recommendatIOn that Mr
Wilson should not be workIng at that tIme
Mr Wilson's condItIOn worsened and hIS physIcIan advIsed hospItalIzatIOn for acute agItated
depressIOn, but Mr Wilson wIshed to attend hIS pre-dIscIplInary heanng on February 17 1987 On
February 20 1987 Mr Wilson's physIcIan advIsed that he was alarmed by the gnevor's condItIOn
folloWIng the pre-dIscIplInary meetIng and stated that subJectIng hIm to It was a form of mental
cruelty
On March 11 1987 the DIrector of the Ambulance ServIces Branch wrote to Mr Wilson that
hIS actIOns on January 23 1987 were subJect to dIscIplIne, but that hIS physIcal and mental health were
cause for concern and mIght be mItIgatIng cIrcumstances In thIS matter He then ordered Mr Wilson
to attend a mandatory physIcal and psychIatnc reVIew
Mr Wilson's physIcIan obJected to thIS reVIew on the basIs that It would be detnmental to Mr
Wilson's mental and physIcal well-beIng, and he referenced the numerous documents that he had
provIded IndIcatIng the seventy of Mr Wilson's condItIOn.
On March 21 1987 Mr Wilson filed a gnevance agaInst the employer for vIOlatIng hIS nghts
and JeopardIZIng hIS health and safety by caUSIng unJust mental cruelty and harassment.
6
In March, 1987 Mr Wilson was assessed by a psychIatnst specIalIst at the Hotel DIeu
HospItal In Windsor and dIagnosed as suffenng from a depressIve reactIOn wIth agItatIOnal and
obsessIOnal features
In October 1987 Mr Wilson had a heart attack. He then went on what was referred to as
"Long Term Income ProtectIOn" benefits On or about October 13 1987 he was asked to turn In hIS
keys, umforms and gate pass by hIS supervIsor
On November 30 1987 the gnevor was suspended wIthout pay for 20 days for hIS actIOns on
January 23 1987 In the letter the RegIOnal Manager claimed that the delay In the dIscIplIne was In
VIew of Mr Wilson's health problems Because the gnevor was not attendIng work, however the
suspenSIOn was not ImmedIately served. On December 21 1987 Mr Wilson gneved the dIscIplIne
On December 29 1987 Mr Wilson was referred for a cardIOvascular assessment folloWIng hIS
release from the hospItal He was dIagnosed as a patIent WIth coronary sclerotIc heart dIsease,
convalescIng from a recent extensIve antenor wall Infarct.
By letter dated January 18 1988 Mr Wilson's physIcIan wrote to the Gnevance Settlement
Board adVISIng that Mr Wilson's recovery was beIng delayed due to the delays In dealIng wIth hIS
gnevances
On February 2, 1988 Mr Wilson applIed for a specIal compassIOnate leave under ArtIcle 30
for hIS absence from May 15 to August 24 1986 dunng hIS first epIsode of depressIve Illness
7
On Apnl 13 1988 Mr Wilson's physIcIan wrote to the manager of the Windsor Central
Ambulance DIspatch Centre adVISIng that Mr Wilson could return to work on May 16 1988 as a
radIO dIspatcher wIth the lImItatIOn that he work no more than 24 hours a week, no more than 8 hours
per day and not be reqUIred to lIft more than 20 pounds The record IS not clear whether the gnevor
actually returned to work at thIS tIme
On June 13 1988 the Gnevance Settlement Board began a heanng on Mr Wilson's
gnevances and five addItIOnal dates were set for November 1988
On July 25 1988 the gnevor's doctor advIsed that Mr Wilson was "able to resume regular
dutIes" On August 8 1988 the DIrector wrote to the gnevor adVISIng hIm that as a result of hIS
clearance to return to work, hIS benefits under the Long Term Income ProtectIOn plan would cease,
effectIve August 5 1988 and on that date he would be declared surplus under then ArtIcle 24 of the
collectIve agreement. No vacanCIes were IdentIfied for the gnevor and he was placed on a leave of
absence wIthout pay untIl August 19 1988 when he exercIsed hIS semonty nghts to bump another
employee from an ambulance dIspatcher posItIOn. Mr Wilson filed a gnevance dated July 29 1988
concernIng thIS matter
In a settlement dated November 3 and November 16 1988 to settle "all outstandIng matters
between the Gnevor and the Employer" all of the gnevor's outstandIng gnevances, as well as hIS
complaInt before the Ontano Human RIghts CommIssIOn, were resolved. The settled gnevances
Included the February 3 1987 gnevance (regardIng the demal of compassIOnate leave under ArtIcle
30) the March 21 1987 gnevance (regardIng the allegatIOn that the employer was JeopardIZIng the
gnevor's health and safety to the extent of caUSIng unJust mental cruelty and harassment) the
8
December 21 1987 gnevance (regardIng the 20-day suspensIOn) the July 29 1988 gnevance
(regardIng hIS beIng declared surplus) and the August 13 1986 complaInt before the Ontano Human
Rights CommIssIOn. The dIscIplIne was reduced to a five-day suspenSIOn and the letter of dIscIplIne
was amended, wIth a twelve-month sunset clause for the revIsed letter of dIscIplIne The gnevor was
compensated for the penod August 8 1988 to the date of hIS return to work on August 19 1988 and
any vacatIOn credIts he used dunng that penod were restored. In addItIOn, the gnevor was paid the
sum of$158 70
In early March 1989 the gnevor went off work wIth chest paIn. He was off on short-term
sIckness benefits from March 6 1989 to August 30 1989 EffectIve August 31 1989 he went on
L T.I.P benefits, floWIng from hIS InabIlIty to perform hIS home posItIOn. EffectIve August 31 1991
he contInued on L T.I.P benefits, floWIng from hIS InabIlIty to perform any occupatIOn. Also dunng
thIS tIme, Mr Wilson began to receIve a Canada PenSIOn Plan DIsabIlIty PensIOn. He contInues to
receIve monthly benefit cheques from both plans
In Mr Wilson's wIll-say statement, he relates hIS medIcal hIStOry SInce March 1989 His last
surgery for hIS heart condItIOn appears to have been In 1990 although complIcatIOns arose In late
March 1994 whIch reqUIred an 8-day hospItalIzatIOn. In addItIOn, hIS chest surgery resulted In a
ventncle hernIa whIch reqUIred three operatIOns between 1993 and 1995
Further Mr Wilson's father developed an abdomInal aneurysm and underwent surgery for
whIch he was hospItalIzed for 35 days Subsequent to hIS release, he suffered a senes of small strokes,
and ultImately passed away In December 1994
9
Shortly thereafter the gnevor's mother-In-law became cntIcally Ill, and ultImately passed
away In June 1995
The gnevor states that health problems prevented hIm from filIng a gnevance pnor to 1996
As of 1996 the gnevor ceased hIS weIght gaIn, and In fact, reduced hIS weIght, and got hIS dIabetes
and blood sugar levels under control
The gnevor further states that In 1995 he met wIth a former co-worker Gerald Redmond who
subsequent to a heart attack, had medIcal restnctIOns whIch IndIcated that he was only able to work 8
hours per day not the twelve hours per day reqUIred by the Employer The Gnevor understood that
the Employer had refused or been unable to take Mr Redmond back on a reduced work week.
AccordIngly Mr Redmond applIed for LTIP but hIS claim for benefits was reJected on the basIs that
he was fit and able to perform 8 hours work per day The gnevor attended wIth Mr Redmond at the
Gnevance Settlement Board, and understands that a medIated settlement was reached whIch awarded
Mr Redmond a lump sum payment. As a result of thIS settlement and hIS dIscussIOn wIth Mr
Redmond, the gnevor began to wonder If he was elIgIble to file a gnevance of any sort. The gnevor
states that he first spoke to the Umon about the possIbIlIty of filIng a gnevance In October 1996 and
that the gnevance was filed shortly thereafter
The wIll-say statement ofMr Coutts, however refutes the tImIng of the gnevor's recollectIOn
of the gnevance of Mr Redmond. AccordIng to Mr Coutts, and the documentatIOn he provIded, the
only gnevance filed by Mr Redmond was dated July 29 1988 (the same date as the gnevance filed by
the gnevor) It was also sIgned by the gnevor as Umon steward, and It was IdentIcal to the July 29
10
1988 gnevance filed by the gnevor Further Mr Redmond's gnevance was settled at the GreIvance
Settlement Board on August 8 1990 not In 1995
The gnevor acknowledged that he was prevIOusly actIve In the Umon, and held Umon offices
In the Late 1970s and early 1980s The posItIOns held were steward, secretary-treasurer and local
presIdent. He states that hIS last posItIOn expIred In 1981
AccordIng to Mr Coutts, however the gnevor was known to hIm as a umon steward In the late
1980s, as eVIdenced by hIS sIgmng Mr Redmond's gnevance In that capacIty and hIS attendIng the
Stage II meetIng for the gnevance of Mr Redmond. Further he states that Mr Wilson was elected as
an officIal delegate to attend a RegIOnal Wage NegotIatIOn Demand SettIng meetIng on September 16-
17 1988 and was elected as DIrector of the Ambulance DIvIsIOnal Employee RelatIOns CommIttee
Team for RegIOn 1 for the Umon.
Decision
ArtIcle 22.2 1 of the relevant collectIve agreement (the 1994-98 agreement) provIdes as
follows
It IS the mutual desIre of the partIes that complaInts of employment be adJusted as
qUIckly as possIble and It IS understood that If an employee has a complaInt, the
employee shall dISCUSS It WIth the employee's ImmedIate supervIsor WIthIn thIrty (30)
days after the CIrcumstances gIVIng nse to the complaInt have occurred or have come or
ought reasonably have come to the attentIOn of the employee In order to gIve the
ImmedIate supervIsor an opportumty to adJust the complaInt.
ArtIcle 222 1 has been held to reqUIre an obJectIve standard, as opposed to a subJectIve standard, In
aSseSSIng whether a gnevance IS tImely OPSEU (Narine-Singh) and MinistlY of Education and
Training GSB No 0035/98 (LeIghton) OPSEU (Joly) and Ministry of the Solicitor General and
Correctional Services GSB No 1009/97 (Brown) OPSEU (Upshaw) and MinistlY of Health, GSB
11
No 2163/97 (Abramsky) Under thIS standard, It IS not when the gnevor actually knows he or she has
a complaInt, but when, on an obJectIve basIs, the CIrcumstances gIVIng nse to the complaInt occurred
or came to or "ought reasonably have come to the attentIOn of the employee "
In thIS case, I conclude that the gnevance was not filed wIthIn 30 days of the CIrcumstances
gIVIng nse to the complaInt, or came to or ought reasonably have come to the gnevor's attentIOn, but
Instead, was filed years later
The October 16 1996 gnevance alleges as follows
I gneve that because of the Inhumane way my Mimstry officIals and management
treated me dunng my Illness, I am holdIng them responsIble for me gOIng on L T I.P
and C.P.P dIsabIlIty I hold them fully responsIble for all the stress and harassment
whIch led to my M.I. [mental Illness] and severe mental depressIOn. AccordIng to my
doctors recent medIcal documentatIOn I wIll never work agaIn. To be counseled and
rehabIlItated for any work wIll never happen because of my health.
There IS no dIspute that the CIrcumstances gIVIng nse to the complaInt In thIS matter all took place
before November 1988 The gnevance alleges a course of conduct by the employer begInmng In
March 1985 and contInuIng untIl November 1988 whIch caused hIm to become mentally and
physIcally III That the gnevor was aware of a causal lInk between the employer's alleged actIOns and
hIS detenoratIng physIcal and mental well-beIng IS clear from a number of the gnevances whIch he
filed dunng thIS penod of tIme, partIcularly the March 1987 gnevance whIch alleged that the
employer vIOlated hIS nghts and JeopardIzed hIS health and safety by caUSIng unJust mental cruelty
and harassment. Under these facts, the gnevor knew about the CIrcumstances gIVIng nse to the
complaInt by November 1988
12
The Umon argues, however that what the gnevor dId not know then was that hIS Illness would
preclude hIm from ever workIng agaIn. His gnevance asserts that the Mimstry's conduct dunng hIS
Illness was the dIrect cause of hIS "gOIng on L T .I.P and C.P.P dIsabIlIty" and hIS never beIng able to
work agaIn. If those "facts" constItute part of the "CIrcumstances gIVIng nse to the complaInt" the
questIOn becomes - when dId those CIrcumstances anse, when dId they come to the gnevor's
attentIOn, or when should they "ought reasonably have come to the attentIOn of the" gnevor?
Based on the eVIdence presented, the gnevor went on L T I.P and C.P.P dIsabIlIty and knew that
he would not be able to work agaIn as of August 31 1991 at the latest. On that date, the gnevor was
determIned to satIsfy the more stnngent standard for dIsabIlIty under L T I.P whIch, as set out In
ArtIcle 70 2 4 of the collectIve agreement, reqUIred that he be "unable to perform the essentIal dutIes
of any gaInful occupatIOn for whIch he or she IS reasonably fitted by educatIOn, traInIng or
expenence"
Clearly It was In August 1991 when the defimtIOn for receIpt of L T.I.P changed from beIng
totally and permanently dIsabled from hIS own occupatIOn to beIng totally and permanently dIsabled
from hIS own or any other occupation that the final "cIrcumstance" gIVIng nse to the gnevance arose
There was no eVIdence presented of any changed CIrcumstances or new medIcal documentatIOn or
dIagnoses In 1996 or Indeed at any tIme after August 1991 Under the facts presented at the heanng,
the gnevor knew as of August 1991 that he was totally and permanently dIsabled from hIS own or
any other occupatIOn. Consequently even assumIng that the "CIrcumstances gIVIng nse to the
complaInt" Include hIS gOIng on L T I.P and C.P.P dIsabIlIty and hIS InabIlIty to ever work agaIn, all
of the CIrcumstances gIVIng nse to the complaInt occurred, came to hIS attentIOn, or ought reasonably
have come to the attentIOn of the gnevor by August 31 1991 at the latest.
13
In so rulIng, I cannot accept Umon counsel's argument that It was not untIl the gnevor's health
started to stabIlIze In 1994 to 1995 that the CIrcumstances gIVIng nse to the gnevance arose Counsel
submItted that the gnevance Involves more that Mr Wilson's gOIng onto L T I.P and C.P.P
dIsabIlIty but Includes all of hIS health problems and the fact that he was never gOIng to work agaIn.
The wIll-say statement ofMr Wilson, however does not IndIcate that hIS health dId not stabIlIze untIl
1994-1995 The eVIdence submItted shows that there were substantIal penods of tIme - 1991 and
1992 - wIthout any maJor new health Issues an SIng. From the eVIdence submItted, those years appear
to be a penod of stabIlIty
In addItIOn, there IS no eVIdence of any new "cIrcumstance" relevant to hIS gnevance whIch
arose after August 3 1 1991 There IS no eVIdence of anythIng new In regard to hIS InabIlIty to work
that occurred after that date Although hIS gnevance states that hIS "doctors In recent medIcal
documentatIOn [state that] I wIll never work agaIn" that was not a new CIrcumstance whIch first arose
In 1996 He first became aware of that unfortunate fact - at the latest - by August 31 1991
There IS no eVIdence to support the gnevor's assertIOn that he was Incapable of filIng hIS
gnevance untIl November 1996 The medIcal InfOrmatIOn contaIned In Mr Wilson's wIll-say
statement does not support that conclusIOn. WhIle It does It establIsh that there were substantIal
pen ods of tIme that he due to hospItalIzatIOns, operatIOns, or personal cIrcumstances, may not have
been able to file hIS gnevance there were clearly other penods when he could have done so but dId
not.
14
Nor was Mr Wilson unaware of hIS nght to file a gnevance That IS eVIdent from hIS earlIer
tImely filIng of gnevances about some of the CIrcumstances Involved In October 1996 gnevance, as
well as hIS actIve role as a umon steward and local presIdent.
There IS also no basIs to conclude that the gnevor learned anythIng In 1995 from the settlement
of the gnevance of Mr Redmond. The eVIdence shows that Mr Redmond's gnevance was settled In
1990 not In 1995 and that the gnevor was aware of that gnevance from ItS InCeptIOn on July 29
1988 Mr Redmond's gnevance was IdentIcal to the gnevance filed by Mr Wilson on the same date
and that gnevance was resolved by Mr Wilson In the November 1988 settlement.
Consequently on the specIfic facts presented, I conclude that the October 16 1996 gnevance
was filed over five years after the last CIrcumstance gIVIng nse to the gnevance arose
The Issue then anses whether there IS any basIs to exerCIse my dIscretIOn under SectIOn 48(16)
of the Labour Relations Act to relIeve agaInst the tIme lImIts contaIned In the partIes' collectIve
agreement. SectIOn 48(16) provIdes arbItrators wIth the dIscretIOn to extend the tIme lImIts found In a
collectIve agreement, If there are reasonable grounds for the extensIOn and the OpposIte party wIll not
be substantIally preJudIced by allowIng the gnevance to proceed. The partIes agreed that the factors to
be consIdered In decIdIng whether there are reasonable grounds for extendIng the tIme lImIts were
outlIned InRe Becker Milk Co and Teamsters Union (1978) 19 LAC (2d) 217 (Burkett), at p 220
The exerCIse of the eqUItable dIscretIOn vested In an arbItrator under the Act reqUIres
a consIderatIOn of at least three factors These are (I )the reason for the delay gIven by
the offendIng party (iI) the length of the delay (ill) the nature of the gnevance If the
offendIng party satIsfies an arbItrator notwIthstandIng the delay that It acted wIth due
dIlIgence, then If there has been no preJudIce the arbItrator should exerCIse hIS
dIscretIOn In favour of extendIng the tIme-lImIts If, however the offendIng party has
been neglIgent or IS otherwIse to blame for the delay eIther In whole or In part, the
15
arbItrator must nevertheless consIder the second and thIrd factors referred to above In
decIdIng If reasonable grounds eXIst for an extensIOn of the tIme-lImIts
In thIS case, there was no valId reason presented for the substantIal delay In filIng thIS
gnevance As noted above, there was no eVIdence that the gnevor was Incapable, physIcally or
mentally from filIng the gnevance untIl October 1996 CertaInly there were pen ods of tIme when he
could not have filed the gnevance, but there were also tImes, long before 1996 when he could have
done so Under the facts presented, Mr Wilson dId not act wIth due dIlIgence
I also find that the more than five-year delay In thIS case was truly extreme In OBLEU
(Gamble) and LCBO GSB No 1635/96 (Gray), a delay of "nearly 24 months" was found to be
"extreme" In OPSEU (Rondeau) and Ministry of the Solicitor General and Correctional Services
GSB No 217/97 (LeIghton) at p 8 a 26 month delay was determIned to be "so long that It would not
be appropnate to exerCIse the dIscretIOn under subsectIOn 48(16) of the Labour RelatIOns Act to
extend the tIme lImIts" Here the delay IS over five years There was no case cIted by the Umon
whIch comes even close to allowIng a delay of thIS magmtude
The maIn thrust of the Umon's argument was that the nature of thIS gnevance compelled a
heanng on the ments There IS no questIOn that the October 1996 gnevance Involves very senous
allegatIOns and very senous Issues The gnevance essentIally claims that the employer through ItS
actIOns, ruIned Mr Wilson's mental and physIcal health to the extent that he can never work agaIn.
But the nature of the gnevance IS only one factor and It sImply cannot, by Itself, lead to a conclusIOn
that there are reasonable grounds to extend the 30-day tIme lImIt negotIated by the partIes In theIr
collectIve agreement for a five year penod.
16
In other cases cIted by the Employer arbItrators have declIned to exerCIse theIr JunsdIctIOn to
extend the tIme lImIts, despIte senous allegatIOns of a long-standIng pattern of dISCnmInatIOn,
harassment and mental cruelty or sexual harassment. See e g OPSEU (Joly) and Ministry of the
Solicitor General and Correctional Services GSB No 1009/97 (Brown) (a 10-month delay) OPSEU
(Rondeau) and Ministry of the Solicitor General and Correctional Services supra (a 26-month delay)
I further conclude that the employer would be substantIally preJudIced by an extensIOn of the
tIme lImIts In thIS matter The employer's actIOns whIch form the basIs of the gnevance all took place
before 1988 eIght years before the gnevance was filed. The passage of so many years may be vIewed
as presumptIvely preJudICIal As noted by Vice-Chair Gray In OBLEU (Gamble) and LCBO supra at
p 13 even where there IS no IdentIfiable specIfic preJudIce resultIng from the delay the preJudIce
caused by delay may be more subtle
The memones of wItnesses who are stIll avaIlable wIll nevertheless have faded,
partIcularly If there has been no notIce that they may have to testIfy about those
memones As a result, theIr testImony may be or may seem less relIable, and thence
less persuaSIve than It would have If there had been tImely notIce of the dIspute
Counsel for the Umon argues, however that thIS sItuatIOn does not apply here because there
were earlIer gnevances, so the partIes were on notIce that the employer's actIOns were beIng
challenged. ThIS argument, however Ignores the fact that those gnevances were settled In November
1988 and eIght years went by before the October 1996 gnevance concermng those same factual
matters was filed. Under thIS cIrcumstance, there was no tImely notIce that wItnesses mIght be
reqUIred to recall these events QUIte to the contrary the settlement of those gnevances would have
led the IndIVIduals Involved to the OpposIte conclusIOn.
17
AccordIngly for the reasons set forth above, I conclude that thIS IS not an appropnate case to
exercIse my dIscretIOn under SectIOn 48(16) of the Labour Relations Act to extend the tIme lImIts for
filIng a gnevance
Further because I conclude that the gnevance was not tImely filed, I need not address the
Employer's other argument that the 1996 gnevance IS barred by the November 1988 settlement.
To conclude
1 The October 1996 gnevance was not tImely filed. It was not filed wIthIn 30 days of when the
CIrcumstances gIVIng nse to the complaInt occurred, or came to or ought reasonably have come to
the gnevor's attentIOn, but Indeed, was filed more than five years later
2 There are not reasonable grounds to extend the tIme lImIts set forth In the partIes' collectIve
agreement under SectIOn 48(16) of the Labour Relations Act and to do so would substantIally
preJudIce the employer
3 AccordIngly the gnevance must be dIsmIssed as It was not tImely filed.
4 In so rulIng, I need not consIder the Employer's other argument that the 1996 gnevance IS barred
by the November 1988 settlement.
Issued at Toronto thIS 28th day of November 2002
~
RandI H. Abramsky Vice-C air