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HomeMy WebLinkAbout1999-1841.Seager.04-03-09 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# 1999-1841 UNION# 00B065 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Seager) Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty FamIly and ChIldren's ServIces) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Nick Coleman PalIare Roland Rosenberg RothsteIn LLP Barnsters and SOlICItorS FOR THE EMPLOYER F enna MurJ I Counsel Management Board Secretanat HEARING Apnl 30 2003 2 DeCISIon On November 15 1996 the gnevor Kathryn Seager filed a gnevance that stated as follows I gneve Management's actIOns as faIlIng to accommodate me and the faIlure to provIde a healthy and safe workplace envIronment In vIOlatIOn of artIcle 18 1 Management has dIscnmInated agaInst me In vIOlatIOn of artIcle 1.2 of the collectIve agreement, but not exclusIvely so The remedy requested Management provIde acceptable accommodatIOn and Health and Safe work envIronment. Management shall reImburse all economIC losses wIth full redress Management shall cease and desIst from further dISCnmInatIOn and any other remedIes the GSB and other JunsdIctIOns appropnate (SIC) By letter dated February 25 1997 the Deputy Mimster's desIgnate wrote to the gnevor adVISIng her that the Umon and Management had held a second stage gnevance meetIng In her absence on February 21 1997and that, as a result of that meetIng, her gnevance was demed. A copy of the letter was sent to the local PresIdent. The Employer dId not take Issue WIth the Umon' s assertIOn that the gnevor never receIved that letter The next correspondence on the file IS dated February 2, 2000 and refers the gnevance to arbItratIOn. Ms MurJI, counsel for the Employer raised a prelImInary obJectIOn to my JunsdIctIOn to proceed on the basIs of the sIgmficant delay between the second stage meetIng and the referral for arbItratIOn. It relIed on artIcle 22 of the CollectIve Agreement whIch reads, In part, as follows 224 If the gnevor IS not satIsfied wIth the decIsIOn of the Deputy Mimster or hIS or her desIgnate or If he or she does not receIve the decIsIOn wIthIn 3 the specIfied tIme the gnevor may apply for a heanng of the gnevance wIthIn fifteen (15) days of the date he or she receIved the decIsIOn. 22 14 1 Where a gnevance IS not processed wIthIn the tIme allowed or has not been processed by the employee or the Umon wIthIn the tIme prescnbed, It shall be deemed to have been wIthdrawn. 22 14 6 The GSB shall have no JunsdIctIOn to alter change amend or enlarge any provIsIOn of the collectIve agreement. The partIes met on October 15 2001 In an effort to medIate the dIspute The Mimstry however dId so wIthout preJudIce and specIfically reserved ItS nghts to rely on the tImelIness obJectIOn If the matter was not resolved. It was not and the Issue came before me as a prelImInary obJectIOn to my JunsdIctIOn. Ms MurJI, counsel for the Mimstry referred to two earlIer GSB decIsIOns that held that the tIme lImIts In the collectIve agreement are mandatory (Rolse and Ministry of Correctional Services (February 21 1990), Watters (GSB#1116/89) and Forbes and Ministry of HeaUh (August 5 1993) DevlIn (GSB #3187/92)) She conceded however that both of those decIsIOns pre-dated the amendments to the Crown Employees Collective Bargaining Act whIch Incorporated sectIOn 48 16 of the Ontario Labour Relations Act and states as follows 48 16 ExtensIOn of Time except where a collectIve agreement states that thIS subsectIOn does not apply an arbItrator or arbItratIOn board may extend the tIme for the takIng of any step In the gnevance procedure under a collectIve agreement despIte the expIratIOn of the tIme, where the arbItrator or arbItratIOn board IS satIsfied that there are reasonable grounds for the extensIOn and that the OpposIte party wIll not be substantIally preJudIced by the extenSIOn. The Mimstry submItted that the case of Bertrand and the Ministry of HeaUh (ApnI12, 1995) (Mikus) GSB# 1998/93 et al) was analogous to thIS case and should be followed by thIS Board. In that case the gnevor had filed three gnevances, one dated September 18 1990 and two others dated December 5 1991 all allegIng dISCnmInatIOn on the basIs of handIcap and all askIng to be returned to work on a rehabIlItatIOn program approved by her doctor A pre-heanng was held In Apnl of 1991 to dISCUSS the first gnevance and an agreement was made whIch allowed the 4 gnevor to return to work as soon as possIble but not before 1992 No mInutes of settlement were sIgned and no formal agreement to wIthdraw the gnevance was gIven by the Umon at the tIme Subsequent to that gnevance meetIng, two addItIOnal gnevances were filed and there was confusIOn about when rehabIlItatIOn programs were to start and whether In fact they had been completed. That confusIOn lasted untIl December of 1994 Dunng that tIme the Employer was of the VIew that the gnevances had been wIthdrawn and that the gnevor had decIded to proceed to the Ontano Human Rights CommIssIOn. The Employer obJected to the gnevance on the grounds that It was outsIde of the tIme lImIt prescnbed In the collectIve agreement and therefore was deemed to have been wIthdrawn. The Umon asked the Board to extend the tIme lImIt pursuant to the Labour Relations Act The Board concluded that the gnevances had In fact been settled through the vanous meetIngs and that the Employer was entItled to conclude that the matter had been resolved. In the CIrcumstances It refused to exerCIse ItS dIscretIOn to extend the tIme lImIt. Mr Coleman, counsel for the Umon, took the posItIOn that thIS was an appropnate case for the Board to exerCIse ItS dIscretIOn and extend the tIme lImIts In dOIng so It ought to have regard to the ratIOnal set out In Becker's Milk Company (Re: Becker Milk Company Ltd. And Teamsters Union, Local 647 (1978), 19 L.D C (2d) 217) In that case the Board determIned that an arbItrator should have regard for the reasons for the delay the length of the delay and the nature of the gnevance In thIS case, the reason for the delay IS sImply that the gnevance once forwarded to the Umon's head office, got lost. No one can explaIn how It went astray except to say that It was dunng the backlog expenment, a tIme of extreme stress for the partIes Mr Coleman conceded that the length of the delay was consIderable approxImately three years between stage two and the referral to arbItratIOn In February of 2000 but he asserted It was not the longest delay for whIch an arbItrator has exercIsed ItS dIscretIOn to extend tIme lImIts In fact, one of the cases cIted In the Becker case Involved a twelve year delay Nevertheless that case went ahead. In the Instant case the Employer was aware of the gnevance and cannot argue that there has been any preJudIce The gnevor has contInuously claimed accommodatIOn and 5 sought a cessatIOn of her alleged harassment. It was argued that the nature of the gnevance also suggests that an extensIOn would be appropnate ThIS gnevance anses from a faIlure to accommodate, faIlure to provIde a healthy and safe work envIronment and harassment. These are not tnvIal matters and are of great sIgmficance to the gnevor The gnevor IS entItled to have these Issues determIned by a Board of ArbItratIOn. She has contInued wIth her gnevance dunng all thIS tIme and has never gIven any suggestIOn that she was prepared to wIthdraw In reply the Employer took the posItIOn that the reasons for the delay should be reJected by thIS Board. The Employer wIll be preJudIced If It IS forced to proceed gIven the long delay ThIS Board should assume that people's memones wIll fade over tIme, especIally sInce they belIeved that the matter had been resolved. In support of ItS posItIOn the Umon relIed on the folloWIng cases Pepsi Cola Canada Beverages v Dollar (1999) N.D J No 526 (N.B C A) Ajax Precision Manufacturing (Triton Division) and United Steelworkers of America, Local 9042 (1999) 85 L.AC (4th) 280 (ShIme) Re Dana Brakeparts Canada Inc. and Canadian Autoworkers Union, Local 199 (2000) 90 L.AC (4th) 387 (Rose) Re Becker's Milk Co. Ltd. and Teamsters Union, Local 647 (1978), 19 L AC (2d) 217 (Burkett) Re Greater Niagara General Hospital and Ontario Nurses' Association (1991), 1 LAC (3d) 1 (ShIff) Re Bombardier Aerospace and Canadian Autoworkers, Local 112 (2001) 97 L.AC (4th) 309 OPSEU (Harju) GSB #2007/96 OPSEU (Khadr) GSB # 1391/99 OPSEU (Palazzo) GSB #1455/97 Re Headingly Correctional Institute and Manitoba Government Employees Association (1986), 28 L AC (3d) 341 and Geralton District for Community Living and Canadian Union of Public Employees, Local 3426 (1994) 42 L.AC (4th) 327 (Palmer) 6 The Employer submItted the folloWIng addItIOnal cases Re Ontario Teachers' Pension Plan Board and OPSEU (1998) 72 L.A.C (4th) 390 (Tacon) Re Board of Eduction for the City of Toronto and CUPE, Local 3111 (1997) 67 L A. C> (4th) 144 (JoachIm) Cherry and Ministry of Finance (2003) GSB # 0626/01 (Gray) and Szabo and Ontario Realty Corporation (2003), GSB # 1811/98 (HErlIch) The day after the heanng the Board receIved a letter from Ms MurJI askIng that the decIsIOn In thIS matter be held untIl further notIce That letter was followed by another letter askIng that the Board reconvene to allow the Employer to make further submIssIOns on ItS motIOn to dIsmISS the gnevance on the basIs of tImelIness The grounds for the Employer's request to reopen the heanng were based on legIslatIve changes to the Labour Relations Act and a subsequent Ontano Court of Appeal decIsIOn InterpretIng those amendments At the tIme sectIOn 45(6), whIch was essentIally IdentIcal to 48(16) allowed an arbItrator or arbItratIOn board to extend the tIme on the lImIts for takIng "any step" In the gnevance procedure The questIOn of what those words meant became the subJect of lItIgatIOn and, In 1992, the wordIng of the sectIOn was amended to provIde that an arbItrator or arbItratIOn board could extend the tIme lImIt for any step In the gnevance or arbitration procedure under collectIve agreement. The addItIOn of the words "arbItratIOn procedure" was Intended to clanfy an arbItratIOn board's authonty to relIeve agaInst tIme lImIts at any stage of the process, IncludIng the referral to arbItratIOn. That provIsIOn was appealed In 1995 and replaced by the Labour Relations Act 1995 The operatIve provIsIOn now IS 48 (16) Except for sItuatIOns where a collectIve agreement states that thIS subsectIOn does not apply an arbItrator or arbItratIOn board may extend the tIme for the takIng of any step In the gnevance procedure under collectIve agreement, despIte the expIratIOn of the tIme where an arbItrator or arbItratIOn board decIdes that there are reasonable grounds for 7 the extensIOn and that the OpposIte party wIll not be substantIally preJudIced by the extenSIOn. In the case ofRe Leisure World Nursing Homes Ltd. and Service Employees International Union, Local 204, ArbItrator Venty dIsmIssed a gnevance on the basIs that he had no authonty to relIeve agaInst tIme lImIts InvolVIng a referral to arbItratIOn. The Board found that the earlIer verSIOn of the Labour Relations Act expressly conferred JunsdIctIOn on a Board to relIeve agaInst tIme lImIts at any step In the gnevance or arbItratIOn process The amendment deletIng the express reference to the arbItratIOn process was Intended to remove any authonty for an arbItrator to relIeve agaInst tIme constraInts In the arbItratIOn process The Umon appealed the decIsIOn and the appeal was demed. In that appeal the Court stated clearly that the Labour Relations Act dId not confer JunsdIctIOn on a Board to relIeve agaInst tIme lImIts In the arbItratIOn process The decIsIOn of the DIvIsIOnal Court was affirmed by the Court of Appeal In 1997 Ms MurJI took the posItIOn that, In presentIng theIr argument on the first day of heanng she had faIled to make the Board aware of the most recent Junsprudence and felt that the Board should not make a decIsIOn In the absence of those decIsIOns It was her posItIOn that the Board ought to make ItS rulIng based on the current state of the law and therefore It had an oblIgatIOn to consIder further submIssIOns In that regard. Mr Coleman took the posItIOn that thIS Board should not allow the Employer to reopen the heanngs The Issue was fully argued and reopemng the heanng would be InCOnsIstent WIth the orderly process of arbItratIOns 8 It was my rulIng at the tIme that we would proceed wIth argument on the ments and I would decIde the Issue of the reopener In the final award. Decision Mr Coleman took the posItIOn that If thIS Board IS prepared to consIder the Leisure World award, It IS not dISposItIve of the Issue The Leisure World decIsIOns and others that have followed are based on the Courts and arbItratIOn board's VIews that the arbItratIOn and gnevance procedures are dIStInCt processes and therefore It reqUIres explIcIt language to gIve an arbItrator JunsdIctIOn to extend tIme lImIts under each of them separately However there have been decIsIOns that have taken a dIfferent approach. It was submItted that where the gnevance procedure In a collectIve agreement combInes the gnevance and arbItratIOn process, any Issue concernIng the tImely processIng of a gnevance should be consIdered together IncludIng any contractual or statutory dIscretIOn to extend tIme lImIts DealIng wIth the Issue of reopemng the heanng, the Umon relIed on several decIsIOns In support of ItS submIssIOns Two of those decIsIOns deal wIth the Issue of post heanng submIssIOns (Walker Estate v York Finch General Hospital [1998] 0 J No 2271 (June 3 1998) and Goodyear Canada Inc. v Jet Centre Management Ltd [1998] OJ No 4124 (Ontano Court of JustIce, October 13 1998)) In the Walker case the Court was reconvened on the Issue of costs In ItS delIberatIOns It commented on events that had occurred subsequent to the conclusIOn of the heanng, namely correspondence receIved from one counsel These matenals were not InvIted nor requested by the Court. The Court cntIcIzed any commumcatIOns by one party after a heanng has been concluded and stated emphatIcally that a Judge need not consIder umnvIted commumcatIOns sent dIrectly to hIm or her In those CIrcumstances He stated that the practIce that had developed of dOIng so should stop He further stated "If counsel feels compelled to 9 contInue a heanng after Its conclusIOn, he or she should follow the appropnate procedure by bnngIng the appropnate motIOn." In the Goodyear case a sImIlar sItuatIOn occurred. Subsequent to the conclusIOn of the heanng, a copy of a decIsIOn InvolvIng the same partIes In a separate actIOn was faxed to the Court by counsel for the applIcant wIthout notIce or consent of the respondent. The court stated that It was Inappropnate for one party to commumcate dIrectly wIth the presIdIng Judge subsequent to the conclusIOn of a heanng unless It has obtaIned consent of the OppOSIng counsel It further suggested that counsel for the applIcant had the means to reopen the heanng If he so wIshed. As a result the Court refused to consIder any matenals or eVIdence before It other than those that were filed at the actual heanng. In the case of Docouto v Ontario (September 8 2000 Ontano Court of JustIce [2000] 0 J No 3322) counsel for one of the partIes provIded the Court wIth further authontIes and requested the opportumty to make addItIOnal submIssIOns The other party obJected and the Court ruled that It would not permIt any further submIssIOns or consIder further authontIes It dId so for the reasons stated In the Walker decIsIOn (supra) In the Becker Milk Co. Ltd. et al. v The Consumers Gas Co (1974),2 L.R. (2d) 554 the Ontano Court of Appeal dealt wIth the Issue of addItIOnal eVIdence It suggested that untIl Judgment was Issued a tnal Judge had dIscretIOn to determIne whether to admIt further eVIdence If he or she were satIsfied that the matter had come to the knowledge of a party after the tnal, could not, wIth reasonable dIlIgence, have been dIscovered sooner and that the eVIdence was of such a character that It probably would have altered the Judgement about to be gIven. The case of QitFerete Titane Inc. v Upper Lake Shipping Ltd. and Hopkins Steelworks Ltd. (1991) 10 3 L.R. (3d) 165 affirmed the former courts decIsIOn that It IS WIthIn a tnal Judge's dIscretIOn to determIne whether fresh eVIdence ought to be admItted on essentIally the same terms stated earlIer In the case of Nele v Royal Bank of Canada [1994] 0 J No 1425 (Ontano Court of JustIce) a motIOn was made to reopen a summary Judgement motIOn on the basIs that entIrely new facts whIch expanded the earlIer InVestIgatIOn had been dIscovered by new counsel SInce there was no doubt that the plaIntIff had made out some tnalIssues whIch could not be dIsposed of In a summary Judgment, the motIOn was allowed. It IS clear from these decIsIOns that It IS WIthIn the tner of fact's dIscretIOn to decIde whether to reopen a heanng. In thIS case counsel for the Mimstry IS not attemptIng to adduce new eVIdence but rather make further submIssIOns wIth respect to the applIcable Junsprudence She dId so In what I belIeve IS the appropnate fashIOn, that IS by requestIng a heanng to argue the Issue of reopemng the heanng. She requested that the Board allow the Mimstry an opportumty to make further submIssIOns and that Issue was properly argued before me Several consIderatIOns come Into play In determInIng thIS questIOn. The first Issue IS, In my VIew the Importance of makIng decIsIOns In full knowledge of the current state of the law What the Employer IS attemptIng to Introduce at thIS stage of the heanng IS a Court of Appeal decIsIOn whIch defimtIvely Interprets a sectIOn of the Ontario Labour Relations Act that applIes not only In thIS case but wIll apply In other cases where a sImIlar fact sItuatIOn anses It would not be In the best sound labour relatIOns Interests between these partIes to make decIsIOns wIthout beIng aware of the current state of the law and, In partIcular Court of Appeal decIsIOns that are bIndIng on the Vice-Chair heanng the matter 11 Even further are the ImplIcatIOns for the Gnevance Settlement Board. It has been accepted for numerous years that a decIsIOn of one panel of the GSB IS bIndIng on other panels In sImIalr fact sItuatIOns Any decIsIOn made wIthout full argument and full knowledge of the law could have the effect of bIndIng further Boards to a decIsIOn that was patently wrong. That agaIn IS sImply not In the Interests of the partIes ThIS case does not Involve a matter of presentIng new eVIdence that ought to have been dIscovered dunng the preparatIOns for the ImtIal case It does however Involve provIdIng the Board wIth the correct legal basIs for ItS decISIOn. There IS no questIOn that these submIssIOns could have and should have been presented at the tIme of the ImtIal heanng. Nevertheless, I have decIded to allow the admIssIOn of these addItIOnal submIssIOns and now consIder the submIssIOns on the ments of the prelImInary motIOn. With respect to the Issue of tImelIness, It IS true that an arbItrator has dIscretIOn to relIeve agaInst tIme lImIts, even mandatory tIme lImIts, where the cntena set out In Becker's Milk and/or the Labour Relations Act have been satIsfied. However the hIStOry of the provIsIOn at Issue IS sIgmficant. In 1992 when It was amended to Include the arbItratIOn process, It was an IntentIOnal addItIOn that was to wIden the arbItrator's JunsdIctIOn to allow the partIes to get to the real Issue before the Board. The subsequent amendment In 1995 was agaIn a delIberate change to the Act to make It clear that there was to be no relIef for a faIlure to meet the tIme reqUIrements for referrIng a gnevance to arbItratIOn. The court decIsIOn In Leisure World confirms that. The Court could not have been clearer It stated In paragraph 19 as follows "The JunsdIctIOn to grant relIef from tIme lImItatIOns WIth respect to gnevances should not be Interpreted to also grant relIef from tIme lImIts from referral to arbItratIOn. SectIOn 48 (16) IS clear and unambIguous To conclude otherwIse IS to conclude that the deletIOn 12 of the words "or arbItratIOn" from the 1995 had no effect whatsoever The words In the statute must be gIven theIr clear meamng. The Board had no JunsdIctIOn to extend the tIme lImIt for referral to arbItratIOn" The Umon has suggested that where the language In the CollectIve Agreement melds the two procedures so that there IS no dIstInctIOn or separatIOn between the gnevance and arbItratIOn process, a Board of ArbItratIOn should apply sectIOn 48(16) and exerCIse ItS dIscretIOn. That questIOn has been effectIvely answered In the decIsIOn of Cherry and the Minister of Finance (GSB#0626/01) In that decIsIOn Vice-Chair Gray stated as follows In paragraph 13 Thereafter thIS gnevance was not referred to arbItratIOn by the Umon for nearly fifteen months, whether that IS because the gnevor dId not ask that It do so or because the Umon dId not follow through when asked, the result on thIS Issue and In thIS forum IS the same accordIng to the collectIve agreement the gnevance IS InarbItrable The Junsprudence on thIS Issue IS clear uneqUIvocal and consIstent. NotwIthstandIng sectIOn 48(16) of the Labour Relations Act, an arbItrator does not have the JunsdIctIOn to extend the tIme lImIts In a collectIve agreement for a referral of a gnevance to arbItratIOn. For these reasons, Employer's motIOn IS granted and the gnevance IS dIsmIssed. Dated at Toronto thIS 9th day of March, 2004