Loading...
HomeMy WebLinkAbout1997-2024.Union.98-05-19 Decision . OWTARJO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OWTARJO 1111 GRIEVANCE COMMISSION DE SElTLEMENT "' REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G tZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G tZ8 FACSIMILE/TELECOPIE (416) 326-1396 GSB #2024/97 OPSEU #98U012 IN THE MATTER OF AN ARBITRATION Under 1 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (UnIon Gnevance) Grievor - and - The Crown III Right of Ontano (Ontano Realty CorporatlonlManagement Board Secretanat) Employer BEFORE R.H. Abramsky Vice-Chair - FOR THE G Leeb UNION Gnevance Officer Ontano Public ServIce Employees UnIon FOR THE D Holmes EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING May II, 1998 ~ AWARD The gnevance III tills matter alleges that the Ontano Realty CorporatIOn (ORe) "failed to comply wIth its reasonable efforts oblIgatIOns m respect to its divestment of Techrucal Consultmg Services and FacilIty Management Services" More specifically, at issue is whether the Employer VIOlated its "reasonable efforts" oblIgatIOn under AppendIx 9 of the collective agreement m connectIOn wIth its "Requests for QualIficatIOn" (RFQs) for techrucal consultIllg and facilIty management services On Apnl 30, 1998, after the heanng on that issue, but before a deCISion was rendered, the ORC canceled the two RFQs and asserts that the issue has now become moot. Facts The Ontano Realty CorporatIOn is the agency of the government willch manages the provmcml government's real estate portfolIo, consistmg of approxImately 5500 leased or owned buildmgs as well as 65,000 acres of vacant land across Ontano It manages and mamtaIlls these buildIllgs, acqUlres, sells and leases land, and constructs new maJor buildmgs In December 1997, the ORC receIved Management Board approval to Issue two "Requests for QualIficatIOn" (RFQs), one for techrucal consultmg servIces and one for property management services, as the first step m ItS plan to mvolve the pnvate sector m the delIvery of real estate servIces ~ '- 2 UltImately, III terms of the techrucal consultmg servIces, the ORC sought one lead firm to provIde multI-dIscIplIllary techrucal consultmg servIces (archItectural, engmeenng and techrucal consultmg) to carry out assIgnments on an "as needed" basIs, although It was anticIpated that there would be from 20 to 50 assignments each year for the term of the contract (3 years WIth a renewal of up to two years) The value of the contract was estImated to be between two to three millIon dollars over the three-year penod, and would {, affect approXimately 120 employees To facilItate ItS selectIOn process, the ORC employed a "qualificatIOn" process through an RFQ, through whIch It planned to select a maxImum of SIX qualified firms who would then be mVIted to bId for the delIvery of these services on a provmce-wIde basIs The RFQ for techrucal consultmg servIces was Issued on January 19, 1998, WIth a clOSIllg date of February 20, 1998 Also on January 19, 1998, a separate RFQ was Issued for facilIty management servIces, WIth a clOSIllg date of February 27, 1998 Ultimately, the ORC sought four firms to provIde facilIty management servIces, land management servIces and leasIllg servIces for the Northern, Eastern, Southwestern and Greater Toronto Area regIOns m Ontano To facilItate ItS selectIOn process, the ORC Issued an RFQ, through whIch It planned to select a maxImum of five qualIfied firms for each regIOn who would then be mVIted to competItIvely bId for the delivery of servIces m the regIOns for whIch they qualified. The ~ successful provIders would be awarded five year contracts The estimated value of the 3 , i four contracts is approXimately 700 milhon dollars, and would affect approXimately 500 employees Essentially, the RFQs were the first stage III the dIvestment process, through whIch the ORC would select those firms whIch were, III itS VieW, the most qualIfied to make firm proposals Only those firms which passed the RFQ stage would be Illvited to proceed to 1" the second, Request for Proposal (RFP), stage A gnevance was filed by OPSEU over these RFQs, allegIllg, III part, that the ORC "has failed to comply with its reasonable efforts oblIgatiOns III respect to its divestment of Techmcal ConsultIllg Services and Facihty Management Services " The gnevance also alleged that the ORC viOlated Appendix 9, subparagraph 5 The requested remedy was "[ c ]omplIance wIth the collective agreement, cease and desIst, and any other remedy the Board deems appropnate " An apphcatiOn for Illtenm relIef was heard on February 25, 1998, and on that date the partIes agreed to hold both RFQs III abeyance pendIllg the decIsIon In thIs matter as to the Employer's "reasonable efforts" oblIgatiOns as well as the - second Issue InvolVIng AppendIx 9, subparagraph 5 whIch concerns employees havIllg the opporturuty to subrrut bIds "on the same basIs as others" A heanng on the ments of the first issue took place on March 3 1, 1998 Thereafter, heanng dates for the second Issue were set for seven days III May On April ~ 30, 1998, however, before a decIsIOn was Issued on the first Issue and the heanng on the , 4 second Issue began, the ORC "decIded to cancel ItS RFQ for both Techrucal ConsultIng ServIces and for FacilIty Management ServIces" Instead, It plans to move dIrectly to the RFP stage In June, wIth a revIsed approach to Its reasonable efforts oblIgatIOn. Arguments of the Parties The Employer contends that the gnevance has become moot III lIght of Its decIsIOn I. to cancel the two RFQs It asserts that by cancelIng the RFQs, It has essentIally capItulated to the Urnon WhICh wanted It to "cease and deSIst", and that, accordIngly, there IS no longer a "lIve controversy" for the board to resolve It asserts that the factual underpIllrung of the gnevance has been elmunated WIth the cancellatIOn of the RFQs and that the whole SItuatIOn IS now defunct The Employer further contends that the Board should not exerCIse ItS dIscretIOn to deCIde the case First, It contends that to do so would be a waste of the partIes' and the GSB's resources, partIcularly SIllce the Druon will very lIkely challenge ItS actIOns m regard to the RFP It submIts that there IS no legItImate baSIS for InCUrrIllg the costs and delay that a determmatIOn of the gnevance would Involve SInce there IS now no compellIng need for a declaratIOn. The Employer also contends that as a matter of labour relatIons, the board should encourage the partIes to resolve theIr own dIspute It asserts that the board's role IS ~ remedial and that WIth the cancellatIOn of the RFQs, there IS no longer a remedial purpose \ 5 . to be served through a decIsIon. Nor, It argues, will a decIsIOn gUIde the partIes since there are no other RFQs and the collectIve agreement will expIre III December In ItS VIew, the only affect a decIsIon will have IS to score a debating pOIllt whIch will only heIghten the partIes' tensIons over thIs Issue The Employer further contends that any declaratIon as to the RFQs can have no { beanng on the proposed RFP WhICh Illvolves a completely dIfferent process, purpose and approach. The RFP, It asserts, will Illvolve new Issues regarding AppendIx 9 whIch wIll not be aided by a declaratIon III thIs case In support of ItS contentIons the Employer cItes Borowski v Canada (Attorney- General)(1989), 57 D.L.R. (4th) 231, 1 S C,R. 342, Re Weiland County Roman Catholic Separate School Board and Ontario English Catholic Teachers Association (1992), 30 L A.C (4th) 353 (Brunner), and OPSEU (Union Grievance) and Ministry of Solicitor General and Correctional Services, GSB No 1925/96 (Abramsky, 1998) The Uruon contends that the case has not become moot because of the cancellatIOn of the two RFQs It pOIlltS out that there has been no settlement of the gnevance but Illstead, a unilateral deCISIOn by the ORC to cancel the two RFQs and proceed dIrectly to the RFP stage It submIts that the Issue In dIspute - whether the Employer's reasonable efforts oblIgatIon applIes to the RFQ stage and If so, whether It has been met - has not ~ been answered to ItS satIsfactIOn and that It IS entItled to have that Issued addressed by the 6 board. The Uruon contends that the legal Issue remaIns III controversy, even though factually, the RFQs have been canceled. The Druon argues that the matter has already been heard and argued and that, consequently, It will not requIre substantIal addItional resources for a deCISIon to be Issued It subrruts that It IS entItled to a deCISIon and that the board has a statutory I;. obhgatlOn under ArtIcle 7(2) of the Crown Employees Collective Bargaining Act to decIde all "differences" between the partIes ansIllg from the "IllterpretatlOn, apphcatlOn, adrrurustratlOn or alleged contraventlOn of the agreement." The Uruon asserts that, despIte the cancellatlOn of the RFQs, there IS a potential ongomg consequence that reqUIres a deCISIon. Specdkally, It may argue, at the RFP stage, that the ORC should have gone through an RFQ, at least a modified one, to ensure that "reasonable efforts" fnendly firms are Illvlted to bId. It contends that a declaratlOn III thIs case would prOVIde guIdance on that Issue The Uillon pomts out that the role of the Board IS not only remedIal but to promote good labour relatlOns In ItS VIew, where dIsputes eXist over the IllterpretatlOn of the collectIve agreement, a ruhng would aid both pantIes It subrruts that It need not WaIt tlll harm IS done to obtam a ruhng and notes that qUIte frequently m arbltratlOn, the only rehef IS a declaratlOn, whIch does not mean case IS moot ~ 7 . - In support of Its contentIons the Urnon cItes to Borowski v Canada (Attorney- Genera!), supra, OPSEU (SmIth/Booth) and Mmistry of Revenue, GSB No 3810/92 (Venty), Re Windsor Roman Catholzc Separate School Board and S.E.l U, Local 210 (1994), 45 L A.C (4th) 149 (Johffe), Re Durham Region Roman Catholic School Board and C. UPE. Local 218 (1991), 19 L A.C (4th) 72 (Brandt) 0( Decision At Issue IS whether the gnevance III this matter has been rendered moot by the cancellatIOn of the RFQs for techrucal consultIllg and facIhty management servIces, and If so, whether the Board should exerCIse ItS dIscretIOn to decIde the matter A. Is the grievance moot? The leadmg CanadIan case concerrnng mootness IS Borowski v Canada (Attorney Genera) supra. In that case, an actIon was brought clmrrung that the therapeutIc abortIon provIsIons of the Criminal Code vIolated the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms Before the case could be heard by the Supreme Court of - Canada, the challenged abortIon provIsIOns were struck down by the court III another decIsIon, and thus "a senous Issue eXisted as to whether the appeal was moot." (57 D.L.R. (4th) at 235) The Court unarumously deterrruned that the appeal was moot, and Mr JustIce SopInka, speaking for the court, dIscussed the doctnne of mootness as follows, at p 239 ~ The doctnne of mootness IS an aspect of a general pohcy or practIce that a court may declme to deCIde a case which raIses merely a hypothetIcal or abstract questIon. The general pnncIple apphes when the decIsIon of the 8 . ~. '- court will not have the effect of resolvIllg some controversy wruch affects or may affect the nghts of the partIes If the decIsIon of the court wIll have no practIcal .effect on such nghts, the court will declIne to decIde the case Trus essentIal mgredIent must be present not only when the actIOn or proceedmg IS commenced but at the tIme when the court IS called upon to reach a decIsIOn. AccordIllgly If, subsequent to the IrutlatIOn of the actIOn or proceedmg, events occur wruch affect the relatIOnsrup of the partIes so that no present lIve controversy eXists whIch affects the nght of the partIes, the case IS saId to be moot. The first step, accordmg to the court, IS "to determIlle whether the requIred tangible and concrete dIspute has dIsappeared and the Issues have become acaderruc" If the answer IS "yes", then It must be determmed If the tribunal "should exerCIse ItS dIscretIOn to hear the case" (57 D.L.R. (4th) at 239) In Borowski, the court deterrruned that there was "no longer a hve controversy or concrete dIspute as the substratum ofMr BorowskI'S appeal has dIsappeared "(57 D.L.R. (4th) at 242) The basIs of the appeal - that certaIll sectIOns of the Criminal Code were unconstItutIOnal - was moot because the dIsputed prOVIsIons had already been struck down m another case and thus "the raIson d'etre of the actIOn has dIsappeared" (Id.) In so rulmg, the court CIted other cases m wruch an actIOn was deemed moot For example, when a murucIpal by-law was repealed pnor to the heanng, It was held that the appealmg party had no actual Illterest and that the decIsIon could have no effect on the partIes. Moir v Village of Huntingdon (1981), 19 S c.R. 363 (S C C ), quoted at p 240 LIkewIse, the repeal of two statutes ui qilestIon led the Pnvy Council to refuse to address the constItutIOnalIty of those laws A.G Alta. v A G Canada [1938] 4 D.L.R. 433, 1939 i 9 . - A.C 117 (P C ), quoted at p 240 In International Brotherhood of Electrical Workers Local Union 2085 and Winnipeg Builders' Exchange (1967),65 D L.R. (2d) 242, [1967] S C.R. 628, quoted at pp 240-41, the end of a stnke rendered moot a dlspute between the partIes as to the valIdlty of an InJunctlOn prohibItIllg certaIn strike actIon. In Re Welland County Roman Catholic Separate School Board and OECTA, ; supra, the board of arbltratlOn declIlled to declde a moot gnevance In that case, the gnevance alleged that the school board vlOlated a memorandum of settlement by faIhng to hIre a certaIn number of addltlOnal teachers III order to prOVIde preparatlOn and plannIng tIme to the full-tIme teachers But by the tIme the heanng was held, the school year III questlOn had ended and only a declaratory order of vlOlatlOn was sought No damages were alleged as a result of the breach. There was no slrmlar provIslon III the collectIve agreement whIch was set to expIre and, accordIllgly, the matter was not one that was likely to occur agaIn. The board deterrmned that the lssue was "moot, and that no declaratory order as to breach or comphance should be lssued as no useful or practlcal purpose would be served III so dOIng, gIVen that no damages were establIshed and that no other consequentIal relIefls warranted" Re Welland, supra at 355 A declaratlOn elther of breach or complIance would, III ltS VIew, have no practIcal effect, other than "perhaps score a debatIng pOInt for one slde or the other" (Id at 358 ) Indeed, the Board was concerned that lSSUIng a declaratlOn "may well InhibIt and detnmentally affect the negotIatIons towards the renewal of the collectIve agreement. "(Id) ~ 10 . , In OPSEU (Umon Grievance) and Ministry of SolicItor General and Correctional Services, supra, I applIed the pnncIples set forth III Borowski, supra and Re Weiland County Roman Catholic Separate School Board, supra. At Issue was whether the gnevance, wruch challenged certaIll aspects of the Mimstry's Attendance Enhancement Program (EAP), had been rendered moot by the subsequent ImplementatIon of a corporate-wIde program. On the specIfic facts of that case, I concluded that the gnevance J was not moot SInce the alleged defects of the oflgIllal attendance program contInued to affect employees under the new program. I concluded that III contrast to the sItuatIon III Borowski and Re Weiland, "because of the contIlluIllg Impact of the Mimstry's deterrmnatIons under the EAP, the basIs of the gnevance has not dIsappeared and a deterrmnatIon on the ments will have a real Impact. " (DecIsIOn, p 10) The cases cIted by the Umon, wruch had not been cIted to me III OPSEU (Union Grievance), supra, appear to take a more lImIted approach to the Issue of mootness In Re Wmdsor Roman Catholic Separate School Board and s.E.! U Local 210, supra, a gnevance was filed by a caretaker allegIllg that the employer Improperly changed rus workload III VIOlatIOn of the collectIve agreement. Before the heanng, however, the employer had altered rus work so as to satIsfy rus concerns and he had transferred to a dIfferent posItIOn. The board deterrmned that the case was not moot, SInce the subJect matter of the gnevance was never dealt wIth to the satIsfactIOn of the uruon and, despIte the removal of the dIsputed assIgnment, there was no adrrussIon by the employer that It ~ had VIOlated the collectIve agreement In ItS VIew, "[t]he fact that the gnevor has SInce f I i 11 i . c transferred from the Job and that the dutles of the vacated posltlOn have been restructured to a degree so that the CIrcumstances as at the tIme of [the] arbltratlOn heanng are now somewhat dlfferent, do not detemune the lssue" (Id. at 153) The gnevance, whIch alleged that the employer VIolated the collectIve agreement III detemumng the gnevor's work schedule, remamed. ! SImilarly III Re Durham Region Roman Catholic Separate School Board and C. UP E., Local 218 supra, the board detemuned that a gnevance concernIllg the derual of an unpaid leave of absence was not moot. In that case, several months before the date of the requested leave, the gnevor became ill and went on paid slck leave whIch she still on as of the date of the requested leave Consequently, she no longer reqUIred the leave of absence The board determmed, however, that the lssue was not moot SIllce the concern that she had been lmproperly derued the leave of absence III the first place remamed. It concluded "The fact that the gnevor became ill (and could not thereby enJoy the speclfic rehef requested) ought not to depnve her of her flght to an adJudlcatlOn of the lssue whIch she raIsed m her gnevance and remams unresolved." (Id. at 75) In OPSEU (Smith/Booth) and Ministry of Revenue, supra, the board also detemuned that a case had not been rendered moot even though the reasslgnment III questlOn had ended and the employer acknowledged that the asslgnment had not been dlscIplmary m nature The board held that there had been no resolutlOn of the lssue and ~ the gnevor "contmues to harbour concerns about the propnety of the asslgnment m the 12 . .. partIcular cIrcumstances of thIs case" AccordIllgly, the board concluded that the case was not moot. The board also noted that under the Crown Employees Collective Bargaining Act (CECBA), the board was to hear and determme "dIfferences" between the partIes ansmg from the "mterpretatIOn, apphcatIOn, adnurustratIOn or alleged contraventIOn of the agreement." It stated at p 6-7 "In VIew of the statutory language, It may be a revIewable error If we were to deny a heanng on the ments " I In the cases cIted by the Uruon, the boards' deterrnIllatlons that the gnevances were not moot appear to stem from a conclusIOn that the Issue of the VIOlatIon of the collectIve agreement remamed, even though CIrcumstances had changed and the ongmal remedy sought (usually some form of speCIfic relIef) no longer apphed. In those cases, despIte the changed CIrcumstances, the ongIllal SItuatIOn whIch led to the gnevance remamed. Here, m contrast, wIth the cancellatIon of the RFQs, the ongmal SItuatIon has changed and the Issue of the VIOlation of the collectIve agreement has been effectIvely extmguIshed. Without the contIlluIllg eXIstence of the RFQs upon whIch the contractual Issues III thIS case are based, resolutIOn of those Issues becomes purely acadenuc and can have no practIcal effect on the partIes To the extent, however, that the cases stand for a broader VIew that m the absence ~ of a settlement, all gnevances should be determmed on theIr ments, I find, wIth the r I I 13 i .. greatest respect, such an approach dIfficult to reconcile wIth Borowski There was no argument here that Borowski was not applIcable to arbItratIOns, and Illdeed, both partIes recogruzed Borowski as the leadIng CanadIan case on the Issue of mootness Fundamentally, Borowski states that the test for mootness IS whether a "lIve controversy" eXIsts That Involves a detenrunatIOn of whether the basIs of the claim "has ! dIsappeared" - whether, by vIrtue of subsequent events, the "raIson d' etre of the actIon has dIsappeared" (57 D.L R. (4th) 242) In tills case, the pnmary basIs of the Uruon's gnevance was that the RFQ process, as It was applIed by the employer, vIolated the ORC's "reasonable efforts" oblIgatIOns under AppendIX 9 At Issue was whether the employer's reasonable efforts oblIgatIon applIed to the RFQ stage and, If so, whether that oblIgatIOn had been met With the cancellatIOn of the RFQs, the basIs of the gnevance has dIsappeared, the raison d' etre of the gnevance no longer eXIsts Any rulIng about these canceled RFQs will no longer have any practIcal effect on the partIes With the cancellatIOn of the RFQs, all that IS left are academIc, hypothetIcal questIOns The same reasorung applIes to the second Issue III thIS case under AppendIx 9, subparagraph 5 With the cancellatIon of the RFQs, any decIsIon would be academIc and of no practIcal effect on the partIes at all The only way that the matter would not be moot IS to take the VIew that the legal ~ Issue III tills matter - whether the "reasonable efforts" oblIgatIOn applIes to the RFQ stage - 14 . .. still remaIllS despIte the cancellatIOn of the RFQs WhIle that IS certamly a temptIllg approach, I believe that, under the facts of thIs case, It IS fundamentally at odds wIth Borowski Without the contmuIllg eXistence of the RFQs upon whIch that legal Issue IS based, a deterrmnatIOn of that legal Issue IS a purely acaderruc exercIse whIch can have no practIcal effect on the partIes !, Further, I find no statutory reqUIrement that a decIsIon be Issued III thIS case Although the board, III OPSEU (Smith/Booth) supra, stated that under the statutory language of CECBA, It mIght be revIewable error If It derued a heanng on the merIts, It still applied the doctnne of mootness The board noted that the pnnclple of mootness was "not foreIgn to arbItratIOns" and "may be applied III the appropnate cIrcumstances" (DecIsIon at p 7) Consequently, although the board must hear and deterrmne "dIfferences" between the partIes ansmg from the "IllterpretatIOn, applIcatIon, admIrustratIOn or alleged contraventIOn of the agreement," the doctnne of mootness reqUIres that those dIfferences be based on a "lIve controversy", not abstract or acaderruc Issues of IllterpretatIOn or alleged contraventIon. Some cautIOn, however, IS clearly warranted because of the control the employer has to alter the cIrcumstances upon whIch a grIevance IS founded and thereby avoId a decIsIOn on the ments. As III the cases cIted by the Druon, there may be tImes when, despIte a substantIal change In cIrcumstances the gnevor or uruon has a contmuIllg Illterest ~ III a deterrmnatIOn of the gnevance - when a declaratIOn will serve the Illterests of the 15 .,. partIes Each case must be decIded on Its partIcular facts. In my VIew, under the specIfic facts of tills case, the cancellatIOn of the RFQs nullIfies any useful or practIcal purpose that a declaratIon as to breach or complIance could have There IS no eVIdence that any other Mirustry IS USIng an RFQ for willch tills decIsIOn ITIlght serve as a gUIde and wIth the partIes soon to enter Into collectIve bargaIrung negotIatIOns, there IS a nsk that a declaratIOn could be used to "score a debatIng pOIllt for one sIde or the other" ! AccordIllgly, I conclude tbat wIth the cancellatIOn of the RFQs, th ere IS no longer a "hve controversy" In tills matter and the gnevance IS moot B. Should the board exercise its discretIOn to decide the case? Under Borowski supra, even when a matter IS deemed moot, adJudIcators still have the dIscretIOn to decIde the case on the ments One of the factors WhICh must be consIdered IS whether, although the partIes no longer have a dIrect Interest In the outcome, there eXist collateral consequences that will provIde the necessary adversanal context for proceedIllg. In tills case, I find no collateral consequences willch would JUStIfy IssUIng a declaratIon. Unlike the sItuatIon III OPSEU (Union Grievance) supra, where the determInatIOns made under the old attendance enhancement pohcy contInued to affect employees under the new one, the cancellatIon of the RFQs effectIvely extIllgUIshed all of ~ the matters presented In the gnevance Further, the collateral consequence suggested by \ 16 '" E the Druon - that It may argue, at the RFP stage, that the ORC should have gone through a modIfied RFQ (wluch takes Illto account whether a potentIal bIdder IS "reasonable efforts" fnendly) - does not, m my VIew, create a collateral consequence wluch would JUStIfy a declaratlOn. That Issue - that there should be an RFQ - IS a completely dIfferent Issue than the one that was presented m tlus case, and a declSlon on the ments here could have no Impact on that qUIte dIStIllct Issue J In addltlOn, although the first Issue III tlus matter was completed, the heanng IS not firushed The second Issue concerrung employee blddIllg IS currently scheduled for seven addItlOnal heanng days Although the first Issue was very well presented and argued III a true adversanal fasluon, It seems unhkely that the reqUIred adversanal context could be mamtaIlled for the remaIllder of the heanng SIllce the decIsIon would have no practIcal effect on the partIes Nor, m my VIew, IS It possible to determme that part ofthe gnevance should be decIded but not the other The cancellatlOn of the RFQs affected both aspects of the gnevance equally Another factor IS the concern for JudICIal, or m thIS case arbItral, economy As noted, although the first Issue has been completed, the second Issue has not yet begun. Frankly, for the partIes and the board to spend seven days at a heanng, then addItlOnal tIme for draftmg an award, about two RFQs wluch no longer eXist and for WhICh a decIslOn can have no practIcal effect, would not be a WIse use of resources, nor would It ~ be m the partIes' or the GSB' s best Illterests. SIllce both partIes are of the VIew that 17 . whatever actIon the ORC takes regardIllg the RFP will be challenged, the partIes' and GSB ' s tIme and resources would be far better spent III that context. Another factor IS the Importance of the Issue and the uncertaInty III the law that the absence of a decIsIOn would cause Without questIon, the Issue of "reasonable efforts" IS Important to both partIes As ArbItrator Kaplan held III OPSEU (Unzon Grievance) and ./ " Ministry of TransportatlOn, GSB No 1344/96, at p 29, "[t]he oblIgatIOn IS an extremely Important one, and It IS one that cannot be taken lIghtly" But there IS no eVIdence that other RFQs eXIst or that the legal Issue presented III tills case would have any Impact beyond the speCIfic fact sItuatIOn that eXIsted here Consequently, despIte the Importance of the "reasonable efforts" oblIgatIOn, the absence of a deCISIon about the RFQs wIll not cause any uncertaInty or harm. A final factor IS whether the SItuatIOn IS one that IS capable of repetItIOn but evadIllg reVIew That IS not the SItuatIOn here Should there be other RFQs III other lllirustnes of WhICh the board IS not aware, they may be Illdependently lItIgated based on the speCIfic facts and approach taken there AccordIngly, for all of the foregoIllg reasons, I conclude that the matters presented are moot and that the board should not exerCIse ItS dIscretIon to Issue a declaratIOn III tills case ~ 18 i - . . " Issued tills ttf'day of May, 1998 III Toronto OvuLt.- t+ ~ ~ 19