HomeMy WebLinkAbout2000-0447.Union Grievance.04-07-19 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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GSB# 2000-0447 2000-1039 2000-1042,2000-1484
UNION# OOU072, 00U090 00U130 01B041
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Umon Gnevance) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of Commumty FamIly and ChIldren's ServIces) Employer
BEFORE Deborah J.D LeIghton Vice-Chair
FOR THE UNION Richard Blair
Ryder Wnght, Blair & Doyle
Barnsters and SOlICItorS
FOR THE EMPLOYER John SmIth
Semor Counsel
Management Board Secretanat
HEARING November 10 2003
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DeCISIon
The Issue before me IS the quantum of damages to be paid to the gnevors for the
employer's breach of the collectIve agreement. In two earlIer decIsIOns, thIS board found 1) that
the employer breached the collectIve agreement when It faIled to follow sectIOn 5 3 of AppendIx
18 In the dIvestment process for Genest, Project Dare and Syl Apps, and 2) that the breach (the
loss of the opportumty to choose work wIth a new employer wIth the protectIOn of semonty for
the purpose of lay-off and promotIOn) was deservIng of compensatory damages
The umon takes the posItIOn that each gnevor's length of servIce should be used to assess
the damages The employer's posItIOn IS that nomInal or no damages should be awarded.
The Umon' s SubmIssIOn
Counsel for the umon, Mr Richard Blair submItted that sectIOn 5 3 of AppendIx 18 of
the collectIve agreement between the partIes was negotIated to Include semonty to provIde
employees, whose work was beIng dIvested, wIth as much protectIOn as possIble - as counsel
described It a "soft landIng," after dIvestment of theIr work to the pnvate sector Along wIth a
guaranteed Job offer of at least 85% of theIr OPS salary the gnevors were entItled to semonty
protectIOn for lay-off and promotIOn. But they dId not get the opportumty to choose such a Job
offer because semonty for lay-off and promotIOn was not Included In the Job offer It IS thIS loss
of opportumty that the board has already found must be compensated, In counsel's submIssIOn.
Counsel argued that the GSB awarded damages for loss of opportumty In OPSEU Jafri
and the Crown in Right of Ontario (Ministry of Correctional Services) 933/91 (DIssanayake)
where the board found the employer acted In bad faith when It dId not extend the gnevor's
contract. Counsel argued that the board In thIS case awarded SIX months of salary to an
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unclassIfied employee for the loss of the opportumty of contInued employment. In counsel's
submIssIOn thIS board put a sIgmficant value on the loss, even when the gnevor had no semonty
Mr Blair argued In addItIOn that cases where arbItrators decIde not to reInstate but to
award money for lost wages are InstructIve In that arbItrators put a value on the loss of the
opportumty of contInued employment. Counsel relIed on Shaver Hospital and CUPE, Local
1742 (1991) 20L.A.C (/1) 122 (Raynel) DeHavillandlnc eta!. and CAW Local 112 (1999)
83 L.A.C (/h) 157 (Rayner) Municipality of Metropolitan Toronto and CUPE, Local 79 (2001)
99 L.A.C (4tl) 1 (Simmons) Counsel argued that these cases show that the loss of opportumty
for contInued employment has been lInked to the gnevor's length of servIce In Metropolitan
Toronto ArbItrator SImmons awarded 1 25 months salary for each year of the gnevor's servIce
Thus counsel argued that the gnevors In thIS case who lost the opportumty of work wIth
the protectIOn of semonty for lay-off and promotIOn, should receIve 1.25 months of the salary for
each year of theIr servIce and an addItIOnal 15% of thIS sum, whIch would represent lost
benefits
The Emplover's SubmIssIOn
Counsel for the employer Mr John SmIth, submItted that although the board has held
that compensatIOn for the loss of opportumty IS the appropnate remedy damages could be
assessed at nothIng. Counsel argued that the board had InSUfficIent eVIdence of actual financIal
loss or proof of a reasonable probabIlIty that loss occurred. Mr SmIth submItted that the
gnevors here had to show they would have got the benefit If the employment contract was
completed. Counsel relIed on the folloWIng cases for the proposItIOn that the courts do not
award damages for the "loss of a chance" or mere chance of loss Chaplin v Hicks [1911J 2
K.B 786 (CA.) Kinkel et a!. v Hyman et a!. [1939J 4 D.L.R.1 (S.C C )
4
Further In counsel's submIssIOn If there are contIngencIes to the success of a contract, as
was the case In EastJ+alsh Homes Ltd v Anatal Devlopments Ltd [1993J 12 OR. (3d) 675 (Ont.
CA.) then "In asseSSIng damages the court must dIscount the value of the chance by the
ImprobabIlIty of ItS occurrence" (p 10)
Counsel for the employer also argued that the gnevors here got eIther severance payor a
Job He questIOned the Importance of not IncludIng semonty for lay-off and promotIOn In the Job
offers, CItIng Canadian Pacific Forrest Products Ltd [1990J OLRB Rep May 492 Mr SmIth
argued that damages must be compensatory not pumtIve and SInce enhanced severance had been
paid, thIS was a sUItable remedy Loss of semonty for lay-off and promotIOns was not
sIgmficant, In counsel's VIew and wIthout eVIdence of actual financIal loss damages In thIS case
should be nomInal - eIther nothIng or $500 per gnevor Counsel also relIed on Bechtel Canada
lnc [1993J OLRB Rep July 581 CUPE, Local 79 v Riverside Hospital (1999) OL.A.A. No 579
(0 Neil)
Mr SmIth made no submIssIOn on the Jafri case presented by the umon.
DeCISIOn
In the decIsIOn of March 21 2003 the board held that whIle damages are not a usual
remedy for a breach of the collectIve agreement, It was the only feasIble remedy In thIS case
That decIsIOn relIed In part on Chemical and Atomic Works and Polymer Corp Ltd (1959), 10
L.A. C 51 whIch held that arbItrators have an Inherent power to award damages for compensable
loss ArbItrator LaskIn, as he then was, held
There IS no need to emphasIze that the dIfficulty of asseSSIng damages has never been a
reason for denYIng a claim thereto based on an establIshed breach of contractual or other
oblIgatIOns owed to the claimIng party (p 64)
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In the case before me the gnevors have establIshed a breach of the collectIve agreement - they
lost the opportumty of choosmg a J ob offer wIth amongst other reqUIrements, semonty protectIOn
for the purposes of lay -off and promotIOn.
I am not persuaded by the employer's argument that thIS loss was non-exIstent or tnvIal
As counsel for the umon pomted out, semonty protectIOn here was a cntIcal part of a complex
dIvestment schema negotIated by the partIes Further It IS clear from the eVIdence m thIS case
that many gnevors were worned wIth reason about the employer's representatIOn to them dunng
the tendenng process that theIr Jobs were not protected by semonty after dIvestment. Semonty
clearly effects Job secunty
The challenge for the board IS to put a fair value on that loss of the opportumty Both
counsels agreed that arbItrators followmg the lme of cases on damages for lost opportumty
begmmng wIth the old EnglIsh case Chaplin v Hicks have the mherent power to order damages
As noted m the excerpt from Damages for Breach of Contract Second edItIOn, PItch and Snyder
put before me by the employer counsel
To recover damages for loss of chance, the plamtIff must demonstrate a reasonable
probabIlIty that he or she would have obtamed the benefit sought had the contract been
completed. As the court wIll reJect a purely speculatIve claim, It IS msufficIent for the
plamtIffto allege that there was a mere chance to obtam the benefit (p 3-3)
In the case before me I have already held that the gnevors lost the opportumty of gettmg
a Job offer wIth the protectIOn of semonty for the purpose oflay-off and promotIOn. The only
reason the opportumty was demed to the gnevors was because the employer breached the
collectIve agreement by not ensunng that the Job offer to them mcluded semonty for the purpose
oflay-off and promotIOn. Thus I am not persuaded that thIS IS a case of a lost "mere chance" or
that there were contmgencIes that lead to the conclusIOn that there IS no provable loss as
suggested by the employer The real Issue or problem IS how to put a value on the loss
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The Court of Appeal In Chaplin v Hicks noted that the dIfficulty of aSseSSIng the loss
does not mean only nomInal damages are appropnate
But the fact that damages cannot be assessed wIth certaInty does not relIeve the wrong
doer of the necessIty of paYIng damages for hIS breach of contract. (p 792)
The court of Appeal also said
I thInk that, where It IS clear that there has been actual loss resultIng from the breach of
contract, whIch It IS dIfficult to estImate In money It IS for the JUry to do theIr best to
estImate It IS not necessary that there be an absolute measure of damages In each case
(p 795)
Here the dIfficulty IS that the gnevors have suffered a loss from the breach of the collectIve
agreement, one whIch IS very dIfficult to estImate In dollars, and one for whIch, as umon counsel
submItted, no clear precedent or absolute measure IS avaIlable However Vice-Chair
DIssanayake's decIsIOn In Jafri IS InstructIve There the employer argued (as the employer dId
here) that there was no proof of loss The board dIsagreed notIng that
The Board must attempt to place the gnevor as much as possIble In the same posItIOn he
would have been In, but for the employer's breach. In most cases that test can be applIed
fairly precIsely ThIS unfortunately IS not one of those cases (p 58)
The board held that but for the breach of the employer the gnevor would have receIved a 6
month contract. In addItIOn, the gnevor lost the opportumty to be consIdered for contInued
employment wIth the Mimstry Thus the board awarded the gnevor damages equal to one year
of earnIngs SIX months for the loss of the contract and SIX months for the loss of the opportumty
of contInued employment. It IS Important to note that the gnevor was an unclassIfied employee,
and therefore had no semonty And that the board awarded the eqUIvalent of SIX months of
salary for the lost chance "to be consIdered for" employment. UnlIke the case before me, thIS
gnevor was not entItled to a partIcular Job offer It was not clear that "the gnevor would have
defimtely been offered employment "(p 57)
The gnevors In the case before me lost the opportumty of employment wIth the
protectIOn of semonty for lay-off and promotIOn. Counsel for the umon argued that
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compensatIOn should be based on each gnevor's length of servIce and he cIted cases where
arbItrators had compensated gnevors after wrongful termInatIOn for loss of employment.
Employer counsel argued that gnevors have been compensated for loss of work. To some extent
thIS IS true, but the gnevors stIll need to be compensated for the loss of the opportumty of work
wIth semonty for lay-off and promotIOn, whIch would most lIkely have gIven them the
opportumty of longer work wIth the new employer WhIle I am not persuaded that the cases on
damages for termInatIOn are helpful, It does make sense to base the calculatIOn of damages here
on semonty because the most semor employees lost the most. They were entItled to work wIth
the most protectIOn from lay-off, and would have had the best chance of promotIOns, If they were
equally qualIfied candIdates
Thus havIng carefully consIdered the submIssIOns of the partIes I have decIded that the
gnevors here shall be paid compensatory damages for the employer's breach of the collectIve
agreement, calculated by multIplYIng what each was paid for two weeks salary by the number of
years of servIce or semonty, and Interest on that amount calculated USIng the formula In the
Courts of Justice Act
The board shall remaIn seIzed of the outstandIng Issues In thIS case and In order to deal
wIth InterpretatIOn or ImplementatIOn of thIS decIsIOn, If necessary
Dated at Toronto thIS 19th day of July 2004