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Home My WebLink About1996-0323.DAVEY99_04_07 OWTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OWTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-13g(j GSB #0323/96 OLB #280/95 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarIO LIquor Boards Employees' Umon (Theresa Davey) Grievor - and - - The Crown III Right of OntarIO (Liquor Control Board of OntarIO) Employer BEFORE Daniel Hams V ice-Chalf FOR THE Juha Noble GRIEVOR Legal Counsel OntarIO LIquor Board Employees Umon FOR THE Michael G Sherrard EMPLOYER Counsel, Ogllvy Renault Bamsters & Sohcitors HEARING Apnll, 1999 The Proceedim!s In th1S matter the Umon, Ontano L1quor Boards Employees' Umon, gneves on behalf of Theresa Davey that the Employer The L1quor Control Board of Ontano d1d not notify her that she had become ehgible to part1c1pate m the pensiOn plan. Her ehg1b1hty had come about as a result of 1989 amendments to the Pension Benefits Act, wh1ch allowed casual employees to enrol m the plan. The Umon - says that the Employer owed a duty to the Gnevor to adv1se her of those statutory amendments As a result of the fa1lure of the Employer to d1scharge that duty, the Gnevor 1S said to have suffered add1tional costs due to the delay m buymg back past penSiOn cred1ts ThlS 1S an mtenm award, wh1ch deals w1th the Umon's request, made at the end of the second day of the heanng, for an order that the Employer produce the followmg 1 Copies of documentatIOn or InformatIOn which would confirm and venfy that the LCBO transmitted to the admInistrator of the pensIOn plan, In accordance With SectIOn 23 [SIC] of the Pension Benefits Act, the names and addresses of each casual employee of the LCBO who was or who became elIgible to become a member of the pensIOn plan In 1988,1989,1990 and 1991 Please provide copies of the documentation, If any, that was prOVided to the admimstrator by the LCBO and please adVise the Umon of the date that thiS InformatIOn was prOVided. 2 In the event that the LCBO cannot confirm that the InformatIOn mentIOned In paragraph one above was forwarded to the admInistrator of the pension plan, please notify [counsel for the Umon] 2 The section of the Pension Benefits Act relIed upon reads as follows 25 ( 1 ) The admInistrator of a pensIOn plan shall provide In wntIng to each person who will be eligible or IS required to become a member of the pensIOn plan, (a) an explanation of the provIsions of the plan that apply to the person, (b) an explanatIOn of the person's nghts and obligations In respect of the pensIOn plan, and (c) any other information prescribed by the regulations. (2) The admInistrator shall provide the Informatwn mentioned In subsection (1), (a) to each person who becomes a member WithIn the prescribed penod of time after the date on which the pensIOn plan IS established, (b) to a person who IS likely to become eligible to become a member of the pensIOn plan, WithIn the prescribed penod of time before the date on which the person IS likely to become eligible, (c) to each person who becomes eligible to become a member of the pension plan upon becomIng employed by the employer Within the prescribed penod of time after the date on which the person becomes so employed. - (3) The employer shall transmit to the adminIstrator the mformatlOn necessary to enable the admmlstrator to comply With subsectIOn (2) and shall transmit the InformatIOn In suffiCient time to enable the admmlstrator to comply With the time limits set out In that subsection. R.S 0 1990, c R8, s. 25 The Submissions of the Parties The Umon submItted that the Issue between the partIes IS the extent of the Employer's oblIgatIOn to notify casual employees of theIr nght to partICIpate In the pensIOn plan. TheIr fallure to so adVIse the Gnevor was sald to be a breach of the 3 Employer's duty under the collective agreement to act fairly, a breach of ItS duty of care and a breach of sectlOn 25 of the Pension Benefits Act. The latter provIslOn was described as bemg encompassed by s 48(12)(j) of the Labour RelatlOns Act, 1995 whIch reads as follows 48(12) An arbitrator or the chair of an arbltratton board, as the case may be, has power (j) to mterpret and apply human fIghts and other employment- related statutes, despite any conflIct between those statutes and the terms of the collecttve agreement. The Dillon submitted that although the gnevance speCifically referred to the antI- dlscnmmatlOn prOVIsIon of the collective agreement, It ought to be broadly construed to prOVide for the dISposltlOn of the real Issue between the parties, bemg the-Employer's failure to notify the Gnevor of her nght to partiCipate m the penslOn plan. The Dillon relIed on USWA and Dunham Bush (Canada) Ltd. (1964), 15 L.A.C 270 (H.D Lang) Fmally, the Dillon submitted that to deny the productlOn of these documents would be to deCide the ments of the Issue between the parties, which would be mappropnate m these Circumstances The documents were Said to be arguably relevant to the Issue between the parties 4 The Employer submItted that there IS no provIsIon m the collectIve agreement that adverts to penSIOn benefits for casual employees Without that nexus, It can not fall to the Board to mterpret s.25 of the Pension Benefits Act The Employer saId no prohIbIted ground of dlscnmmatIOn was vIOlated under artIcle 2 1 (b), the only artIcle referred to m the gnevance, therefore, there was no vIOlatIOn of the collectIve agreement. Accordmgly, the Board was saId to be wIthout JunsdlctIOn to enforce s.25 of the Pension Benefits Act. The Employer relIed on OPSEU - (Brummell) and the Crown in Right of Ontario (Ministry of Health) GSB 1584/91 (B KIrkwood), Ford Motor Co of Canada Ltd. And CAW, Local 1520 (1992),27 L.A.C 4th 257 (Palmer), Haldlmand-Norfolk Police Services Board and Haldimand Norfolk Pohce Assn. (1993),36 L.A.C (4th) 248 (Palmer) Reasons for Decision - At the outset of thIS heanng, the partIes Jomed Issue over the dIfference m theIr VIews as to the duty of the Employer to notIfy ItS casual employees of the legIslatIve change that permItted such employees to partICIpate m the pensIOn plan after January 1, 1990 The Dmon has submItted that documentatIon prOVIded to the pensIOn admmlstrator IS arguably relevant to the deternunatIOn of the Employer's duty 5 I agree wIth the Dillon that to accept the Employer's submIssIOns as the baSIS upon whIch to deny the requested productIOn would be a de facto detemunatIOn of the central Issue before the Board. At thIS stage of the proceedmgs It would be mappropnate to make such a determmatIOn. The Dillon submIts that the duties breached are grounded m the collective agreement and are duties of care, or fairness, owed by the Employer to the Gnevor GIven that charactensatIOn of the Issue, to deny productIOn would foreclose the Dillon from presentmg ItS case and - would amount to a deCISIon on the ments Such a deCISIOn on the ments would be premature The production requested IS arguably relevant to the Issues before the Board and ought to be ordered. The foregomg IS clearly WIthout prejUdICe to the partIes' nghts to argue the case at ItS close It IS m the fullness of the eVIdence that the matter WIll be determmed, - not as the result of a request for productIOn. In any event, thIS IS not a matter where the ments of the Dillon's case may be dIsposed of as a prehmmary Issue The eVIdence upon WhICh such a determmatIOn must rest IS co-extenSIve WIth the eVIdence on the ments ThIS IS not the same SItuatIOn as that m Brummell, supra, where the eVIdence related to dIscussIOns takmg place pnor to the formatIon of the employment relatIOnshIp Rather, the facts here anse m the employment context, resultmg m the Issues bemg less 6 amenable to bemg severed and dealt wIth as a prehmmary matter, whIch was Imphclt m the Employer's resIstance to accede to the request for productIon. The Decision The Employer IS ordered to produce the matenal requested as set out above - DATED at Toronto thIS 7th day of Apnll999 ~ \ Damel HarrIs, V Ice ChaIr -