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HomeMy WebLinkAbout1999-1375.Lariviere.00-05-12 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L '()NTARW GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1375/99 OLBEU # OLB043/99 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees Uillon (Lan vIere) GIievor - and - The Crown III RIght of Ontano (LIquor Control Board of Ontano ) Employer BEFORE Daniel A. Hams Vice ChaIr FOR THE CraIg Flood GRIEVOR Counsel KoskIe & Minsk" Bamsters & SolIcItors FOR THE Micheal Sherrard EMPLOYER Counsel Ogll", Renault Bamsters & SolIcItors HEARING April 28, 2000 AWARD [1] ThIs matter mvolves a claim for dIsabIlIty benefits by the gnevor, Gerald LanVIere It ongmally came on for heanng m Guelph, Ontano on February 3, 2000 On that day, the partIes, the LIqUor Control Board of Ontano and the Ontano LIqUor Boards Employees' Umon entered mto vanous dIscussIOns m order to narrow the Issues before the Board. [2] There were two prelImmary matters addressed that day The first related to a purported expanSIOn of the gnevance by the umon. The second was an ObjectIOn by the employer to the arbItrabIlIty of the gnevance Seemmgly, thIS IS the first gnevance under the 1998- 2000 collectIve agreement callmg mto questIOn the non-payment of benefits It was common ground between the partIes that no ObjectIOn to arbItrabIlIty of such matters could be raised under the prevIOUS collectIve agreements The employer now says that such ObjectIOns do lIe, and It squarely raised them m thIS matter [3] The heanng adjourned on February 3, 2000, after the Board took JunsdIctIOn, admItted exhibIts mto eVIdence and heard bnef opemng statements The matter was scheduled to resume on Apnl 3 and 28, 2000 It was antIcIpated that the Board would hear the partIes' submIssIOns on the arbItrabIlIty Issue, provIded the partIes had been able to resolve certam condItIons precedent. The heanng date of Apn13, 2000 was adjourned. When the heanng resumed on Apn128, 2000 the employer submItted that the Board's JunsdIctIOn m thIS matter had been ousted as a result of the umon havmg wIthdrawn a claim for medIcal expenses m a dIfferent matter ansmg m Ottawa. [4] The followmg excerpts from the relevant correspondence sets out the current Issue between the partIes March 16, 2000 Counsel for the Employer to Counsel for the Union. Also as dIscussed, the employer will be takmg the pOSITIOn' at arbItraTIOn that the gnevance IS marbItrable. TIns was the pOSITIOn the employer took m response to the gnevance. I would apprecIate It If 'ou would provIde me With partIculars of the Dillon's pOSITIOn With respect to arbItrabIh~ and specIficalh whether the Dillon IS allegmg that the Employer has not provIded coverage as negotIated and agreed to Finalh 1 am provIdmg 'ou With a cop, of three pages excerpted from the Master Insurance Pohc, I draw, our attenTIon to page 2, paragraph (c) whIch provIdes that m the event that apphcaTIon IS filed more than 31 days after the date an employee becomes ehgIble, proof of msurabih~ will be reqwred. March 21, 2000. Counsel for the Union to the Registrar, GIievance Settlement Board The Umon requests leave to Withdraw the above captIOned gnevance. March 31, 2000. Counsel for the Employer to counsel for the Union. ThIS will acknowledge receIpt of, our letter dated March 21 2000 advIsmg the Gnevance Settlement Board of your mtentIOn to Withdraw the above noted grievance. The employer Wishes to advIse that It IS theIr pOSITIOn that the unilateral wIthdrawal of the gnevance constItutes eIther estoppel or res judicata m the event sundar gnevances have been or will be filed. As a result of the umlateral Withdrawal, the employer Will be takmg the posItIOn at an, arbItraTIOn dealmg With a sunilar gnevance that the Withdrawal was With preJudIce, and that an, sunilar matter IS to be res judicata and/or the Umon IS to be deemed estopped from bnngmg a second gnevance on the same clrum. [5] Umon counsel sent reply correspondence dated Apnl 6,2000 whIch rejected the employer's assertIOns [6] The Instant gnevance and relIef claimed are as follows Statement of gnevance I hereb, gneve that the employer has vIOlated the c.a. Art. 20 and an, other apphcable artIcles m the c.a. CECBA and OLRA Also see attached letter Settlement desIred. To be on LTIP from da, one of chsabIh~ [7] The letter attached to the gnevance reads as follows FebruaI) 10 1999 STATEMENT OF GRIEVANCE. On behalf of the Umon and Mr Gerrard LadvIere Without preJuchce to an, pOSITIOn m an, other legal proceedmg past or present and/or contemplated, we hereb, gneve that the Emplover has vIOlated the Collective Agreement and, WIthout hrmtmg the generah~ of the foregomg, ArtIcle 20 thereof, m that the Gdevor has not receIved long term mcome protectIOn benefits notWIthstandmg that he/she has been totalh dIsabled WIthm the meanmg of ArtIcle 20 of the CollectIve Agreement. SETTLEMENT DESIRED. I A declaratIOn that the Emplover IS bound to the CollectIve Agreement; 2. A declaratIOn that the Emplover has vIOlated the CollectIve Agreement as alleged herem,. 3 An order that the Emplover provIde to the Gdevor long term mcome protectIOn benefits provIded m ArtIcle 20 of the Collective Agreement, to the extent that the Gdevor has not receIved such benefits 4 Such further and other rehef as ma, be appropnate m the cIrcumstances. We have been mstructed to refer thIS matter to arbItration unless the gnevance IS satIsfactorih resolved. [8] The text of the Rhonda WhIte gnevance III Ottawa reads as follows Statement of gnevance FaIlure to provIde servIces as agreed to artIcle 20 of the collectIve agreement My husband's prescnptIOns & medIcal expenses have been refused by IllS Comp I have contacted H.R. and there has been no attempt to correct It. Settlement desIred. I would hke the same results as an, other group Ins Pohc, coverage. I want all of our medIcal expenses paid. All of the expenses that have been refused and all of future expenses covered. [9] The employer argued that the wIthdrawal of Ms WhIte's gnevance m the Ottawa proceedmgs eIther estopped the umon from contmumg wIth the mstant gnevance or rendered It res judicata It said that there are three condItions whIch, when met, gIve nse to such an estoppel, or, alternatively, to the applIcatIOn of the doctnne res judicata FIrst, the matter must be between the same partIes Second, the matter must be Identical m both proceedmgs, and thIrd, the matter must have been brought for the same object. [10] The employer proposed that the Board deal wIth ItS ObjectIOn on the basIs of the documents set out above It was the umon's posItIOn that the employer should be put to the stnct proof of ItS case It was ultimately agreed that the matter would be argued from the documents, provIded that, If there were a prima facie case made out, then the employer would be put to the stnct proof of ItS case [11] In my vIew, there IS no prima facie estoppel or res judicata on the face of the documents Here the partIes are Identical, bemg the umon and the employer However, the matters at Issue are not Identical, nor are the objects for whIch the gnevances were brought. Rather, the gnevances were filed on behalf of two dIfferent mdIvIduals claImmg dIfferent benefit coverage, one for medIcal expenses, one for dIsabIlIty benefits [12] Whether charactenzed as res judicata or Issue estoppel, It cannot be said that the decIsIOn to wIthdraw the Ottawa gnevance IS sufficIently final or JudIcIal to bnng the mstant proceedmgs to a halt. These are not consecutIve proceedmgs where the pnor abandonment, settlement or wIthdrawal can be taken as determmatIve of an Issue J omed between the partIes These are essentIally contemporaneous, dIstmct and dIfferent matters m whIch the employer contests arb Itrab IlIty [13] Further, nowhere on the face of the documents IS the nature of the employer's ObjectIOn clearly stated. InarbItrabIlIty of a gnevance can be raised on numerous grounds, and the grounds are not clear on the face of these documents The wIthdrawal, settlement or abandonment of a gnevance cannot necessanly be taken as aqUIesence m the OpposIte party's VIew of arbItrabIlIty for all other matters and all other gnevors The prmcIple, as elaborated by the Junsprudence, IS that a party may not bnng forward another complamt over the same fact SItuatIOn after that fact SItuatIOn has been settled, abandoned, wIthdrawn, or finally determmed by a competent tnbunal The settlement, abandonment, wIthdrawal or determmatIOn of a specIfic matter bnngs that matter to an end. That does not prevent another, dIfferent matter from bemg lItIgated. Where the subsequent matter mvolves the applIcatIOn of SImIlar legal prmcIpals to a SImIlar fact SItuatIOn the result may be easIly predIcted, unless the pnor determmatIOn IS mamfestly wrong None the less, It IS lItIgable [14] The prmcIpalIs grounded m fairness When a matter IS finally concluded, It IS reasonable to act on that basIs Domg so wIll generally result m detnment to the OpposIte party should the same matter be brought on agam ThIS detnmental relIance on the finalIty of the prevIOUS proceedmgs estopps the subsequent proceedmgs Also, where there can be said to have been a pnor JudIcIal determmatIOn of the matter It cannot be brought on agam m a dIfferent gUIse [15] The mstant matter IS at a stage where there are actIve dIscussIOns between the partIes as to the expedItIOus heanng of a senous polIcy Issue between them That Issue IS one of consIderable currency m the labour relatIOns commumty, bemg the arbItrabIlIty of benefit coverage claims In my VIew the CIrcumstances of the Ottawa wIthdrawal do not oust the JunsdIctIOn of the Board to deal wIth thIS matter There IS no eVIdent detnment to the employer Even If the bare wIthdrawal amounted to a representatIOn on whIch the employer relIed, the umon promptly and clearly rejected that mterpretatIOn. There was, m effect, no opportumty for the employer to have suffered any detnment m thIS matter There IS also no specIficIty to the reasons for the wIthdrawal as would permIt a findmg that the umon mtended to wIthdraw ItS defence to the employer's ObjectIOn to arbltrablhty m thIS ongomg matter That IS to say, nothmg m the documents conveys to the employer the notIon that the umon agrees wIth the employer's VIews on marbltrablhty There IS nothmg m these CIrcumstances on whIch the employer can detnmentally rely, nor has there been a final determmatIOn of the marbltrablhty Issue by the Board. [16] Accordmgly, the employer's ObjectIOn to the Board proceedmg wIth thIS matter IS demed. Dated at Toronto thIS lih day of May, 2000 DanIel A. HarrIs, V Ice-Chair