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HomeMy WebLinkAbout2003-2386.Union Grievance.05-01-17 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# 2003-2386 UNION# 2003-0999-0027 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) Union - and - The Crown In RIght of Ontano (Management Board Secretanat) Employer BEFORE FelIcIty D Bnggs Vice-Chair FOR THE UNION Andrew Lokan Pall are Roland Rosenberg RothensteIn LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Lucy McSweeney Semor Counsel Management Board Secretanat HEARING December 20 2004 2 DeCISIon On September 30 2003 the Umon filed a polIcy gnevance that alleged the Employer "IS In vIOlatIOn of the collectIve agreement by the deductIOn of the CPP (DIsabIlIty Benefit) COLA from L TIP benefits" By way of remedy the Umon asked that the Employer be ordered to cease thIS practIce and to make whole all LTIP recIpIents "both current and former" ThIS decIsIOn addresses a motIOn raised by the Employer that I should wIthdraw from thIS case due to a reasonable apprehensIOn of bIas The folloWIng facts are relevant to an understandIng of thIS matter I have been a Vice Chair wIth the Gnevance Settlement Board for more than a decade and have medIated and arbItrated many dIsputes for these partIes AddItIOnally I (along wIth Vice Chair Loretta Mikus) act as Co-Chair on the JOInt Insurance Benefits RevIew CommIttee (JIBRC) In that capaCIty I hear and determIne appeals from members of the bargaInIng umt whose claims for Long Term Income ProtectIOn benefits have been demed or dIscontInued. The umque process for heanng these L TIP dIsputes was negotIated by the partIes and has been In place for a number of years The heanngs usually reqUIre only one day of heanng and the lItIgatIOn proceeds on the basIs of the claimant's medIcal file In 2004 the partIes JOIntly agreed to have me hear and determIne thIS gnevance With the agreement of the partIes I attempted to resolve thIS matter through medIatIOn. The matter was not resolved and accordIngly on November 19 2004 we proceeded to heanng. Opemng statements dIsclosed that the partIes have very dIffenng VIews of the propnety of offsettIng L TIP benefits wIth other penSIOn of WSIB benefits There was no dIspute that, at one tIme the Employer took the posItIOn that InflatIOnary adJustments would not be offset. However In 1998 the Employer's approach to thIS matter changed and It advIsed the Umon accordIngly Ms Nixon, for the Employer stated at the November 19 2004 heanng that the Employer was led to belIeve that the Umon agreed to thIS change because no gnevance was filed untIl September of 2003 Ms Nixon bnefly outlIned the Employer's VIew of thIS matter First of all It was the Employer's VIew that the language of the collectIve agreement IS clear and supports ItS 3 VIew It was also the Employer's VIew that the gnevance IS out of tIme Furthermore, the Employer asserted that Umon IS estopped from succeedIng In thIS matter because the matter was dIscussed at three JIBRC meetIngs In late 1998 Then, accordIng to the mInutes from December 15 1998 untIl December 2000 OPSEU was "to revIew" the matter Finally on December 2000 the notatIOn In the mInutes states "remove from the table" On that basIs, the Employer's posItIOn was that It assumed the matter was no longer an Issue In dIspute between the partIes Therefore It lost any opportumty that It mIght have had to deal wIth the Issue In collectIve bargaInIng. Ms Nixon suggested that the Employer relIed upon the Umon's representatIOns to ItS detnment and therefore the Umon IS estopped. Mr Lokan, for the Umon suggested that the Employer has vIOlated ArtIcle 42 2.2 of the collectIve agreement. Further because members seekIng L TIP were Induced to apply for CPP and gIven certaIn representatIOns that there would be no offset It would now be IneqUItable to allow the Employer to offset the COLA as It has done Therefore the Employer IS estopped. At the conclUSIOn of the opemng statements I spoke wIth counsel for the partIes and advIsed that as a result of my work wIth the partIes In the JIBRC process I had expenence wIth the phrase "removed from the table" I Informed counsel that, In my expenence, It mIght mean that a file was beIng wIthdrawn but It mIght also mean that the matter was mOVIng to the appeal stage, that IS, to be adJudIcated. I also told counsel that at one of my earlIer JIBRC heanngs, there was speCIfic dIscussIOn about the phrase "removed from the table" and the phrase was part of an argument raised In an eVIdentIary matter Further I IndIcated to counsel that It was my VIew that It was Important for me to make the partIes aware of thIS matter In order that they may address It In any way that they mIght see fit. By agreement, the matter proceeded agaIn to medIatIOn for the remaInder of November 19 2004 AgaIn those efforts were unsuccessful In resolvIng the matter and the day concluded wIth dIscussIOns about further dIsclosure Issues I was notIfied shortly after thIS day of heanng that the Employer Intended to proceed wIth a motIOn that there IS a reasonable apprehensIOn of bIas on my part and that I should therefore remove myself from the matter The heanng reconvened on December 20 2004 to deal wIth thIS prelImInary matter 4 Ms McSweeny for the Employer submItted the estoppel aspect of Its case IS very Important. AccordIngly It IS proceedIng wIth thIS motIOn for three reasons The first IS because the Employer heard me to IndIcate that It mIght not want me heanng thIS matter gIven my expenence Further as a result of workIng wIth JIBRC I have a dIfferent understandIng of the phrase "remove from the table" FInally the phrase "remove from the table" was raised In a matter that reqUIred a rulIng. Ms McSweeny stated that the Employer was of the VIew that because I "flagged" thIS Issue, there IS a reasonable apprehensIOn of bias To be clear It IS not contended that I have an actual bIas Indeed, Ms McSweeny said that the Employer IS of the VIew that If I thought I was bIased I would have wIthdrawn from the matter However If my dIsclosed comments were known at the tIme thIS matter was scheduled to proceed before me, the Employer would have asked another arbItrator to deal wIth the gnevance GIven that VIew I must find that there IS a reasonable apprehensIOn of bIas The Employer contended that because thIS dIspute concerns the meamng of a speCIfic representatIOn, my famIlIanty wIth the partIes In relatIOn to the admInIstratIOn of benefits creates an apprehensIOn of bIas It was common ground that the appropnate test for thIS Board to conSIder IS whether an Informed bystander would have a reasonable apprehensIOn of bIas In these cIrcumstances, In the Employer's VIew In thIS regard the Employer relIed upon Re Newfoundland Telephone Co. v Newfoundland (Board of Commissioners of Public Utilities) [1992] 1 S C.R. 623 [1992] S C.J No 21 Re Committee For Justice and Liberty et al v National Energy Board et al (March 11 1976), 68 D.L.R. (3d) 716 (S C C) Re The Crown in Right of Ontario and OPSEU (Kowal) (1989) GSB#83/88 (Venty) Re Maple Leaf Meats Inc. v The United Food and Commercial International Union, Local 175 (2000), 89 LAC (4th) 439 (Gordon) Re Ontario Hydro [1997], O.L.R.D No 3578 (O.L.R.B ) (SurdykowskI) and Re Miracle Food Mart, Steinberg Inc. and UFCW (1991) 18 L.AC (4th) 257 (Kennedy) Mr Lokan, for the Umon submItted there are two reasons to dIsmIss thIS motIOn. The first IS because In the labour relatIOns context people are InVIted to hear and determIne dIsputes preCIsely because of theIr backgrounds and areas of expertIse In the Instant matter It was noted that I have knowledge of the partIes, an understandIng of the context for thIS dIspute expenence wIth the collectIve agreement and the Issues between the partIes That famIlIanty must be VIewed 5 posItIvely not as a reason to step down from thIS matter In the Umon's VIew the complete answer to the Employer's concern IS that eVIdence has yet to be called. The Employer has every opportumty to call eVIdence as to the meamng of the phrase "remove from the table" The Umon relIed upon excerpts from Judicial Review of Administrative Action in Canada by Brown and Evans At page 11-54 "pnor knowledge" IS conSIdered. It stated Generally speakIng, the qualIty of a heanng IS lIkely to be enhanced If the decIsIOn-maker has some general knowledge and understandIng of the matters to be decIded. And that IS equally true of Issues of law and of matters of professIOnal Judgment and polIcy to be decIded by admInIstratIve tnbunals, many of whIch were created speCIfically to ensure that decIsIOns were made by IndIVIduals wIth a specIalIzed knowledge of the subJect matter Indeed, thIS pOInt has been explICItly recogmzed In the context of human nghts tnbunals as follows Human nghts InqUIry boards are drawn from those who have some expenence and understandIng of human nghts Issues To exclude everyone who [has] ever expressed a VIew on human nghts Issues would exclude those best qualIfied to adJudIcate fairly and knowledgeably In a sensItIve area of publIc polIcy AccordIngly SInce pnor knowledge IS not In Itself a bad thIng, the questIOn In each case wIll be one of drawIng a lIne between that whIch IS appropnate, and that whIch could be said to lead to eIther preJudgment or to ex parte eVIdence-gathenng. Or to put It In tradItIOnal doctnnal terms, It reqUIres ascertaInIng the pOInt at whIch pnor knowledge gIves nse to a reasonable apprehenSIOn of bIas The Umon submItted that It mIght be dIfferent If I had been an eye wItness to an event whIch IS central to an Issue beIng lItIgated before me However that IS not the case Here we have a phrase that IS to be Interpreted and there IS nothIng In my dIsclosure that would make It Inappropnate for me to hear the eVIdence and determIne what the phrase actually means In the context of thIS matter Mr Lokan asserted that a reVIew of the mInutes of the vanous JIBRC meetIngs themselves reveal the very matter I dIsclosed. That IS, that "remove from the table" has more than one meamng. Further the Employer has consIstently taken the posItIOn that the Umon IS estopped maInly because of ItS faIlure to take any actIOn between December of 2000 and December 14 2003 That fact has nothIng to do wIth any words found In the JIBRC meetIng mInutes The Umon contended that It IS to be remembered that these partIes agreed on more than one occaSIOn that I would medIate thIS dIspute Mr Lokan suggested It IS qUIxOtIC that the Employer 6 would now raise an Issue of theoretIcal preJudIce that mIght anse as the result of my exposure to certaIn termInology when It was content to put a negotIatIng posItIOn In front of me The Umon also submItted that thIS motIOn mIght be a tactIcal move by the Employer to deraIl these proceedIngs and stall an answer to thIS Important questIOn. Indeed, real preJudIce would be caused If the partIes had to begIn thIS process anew ThIS Board should not allow the motIOn out of an abundance of cautIOn because labour relatIOns harm could be done as a result. The Umon relIed upon Re Centenary Health Centre and Ontario Public Service Employees Union (1996),60 L.AC (4th) 21 (WhIttaker) In reply Ms McSweeny advIsed that thIS motIOn has not been made lIghtly The Employer IS faced wIth a consIderatIOn as to how to "dIslodge" my understandIng of the phrase "remove from the table" and It would be "better" for someone wIthout any expenence or understandIng of the phrase at Issue to hear thIS matter DECISION At the outset I wIsh to note my reJectIOn of the Umon's suggestIOn that thIS motIOn was put forward by the Employer In an effort to deraIl the lItIgatIOn of thIS matter There IS sImply no eVIdence of such motIvatIOn and I accept that the Employer raised thIS motIOn In good faith. Much has been wntten on the Issue of JudIcIal bIas The Employer provIded Leading Cases On Labour Arbitration, Volume 1 (EvIdence and Procedure) (Toronto Lancaster House, 2002) (Mitchmck and Ethenngton) BIas IS reVIewed thereIn begInmng at page 1-7 In the case of a neutral Chair of an arbItratIOn board, or sole arbItrator a reasonable apprehenSIOn of bIas can anse In a vanety of sItuatIOns In Camp Hill Medical Centre and N S.N U (1995),51 L.AC (4th) 164 ArbItrator Sloane reVIewed the caselaw on bIas, and outlIned the grounds for removal of an arbItrator as follows 1 "demonstrated" bIas, based on somethIng done or said In the course of the proceedIngs 2 Pnor or present Involvement In the same case 3 An ongoIng clIent relatIOnshIp wIth one of the partIes 4 A famIly or other personal relatIOnshIp wIth one of the partICIpants 5 Pnor professIOnal aSSOCIatIOns not separated by a "respectable penod of tIme" 7 The arbItrator emphasIzed that the mere dIscomfort of the obJectIng party IS not a sufficIent ground on whIch to dIsqualIfy an appoIntee In each case, It IS the "reasonableness" of the asserted apprehensIOn whIch must be assessed. Enc Sloane, Chair - In analyzIng the cases, It IS apparent that they fall Into several dIStInCt types Demonstrated Bias A perceptIOn of bIas may anse dunng the course of the very proceedIng eIther as a result of comments made or In some cases, Improper ex parte commumcatIOns WIth one sIde In R. v R.D S [1995] N S J No 444 (QL) (C A) whIch IS the most recent case of the Nova ScotIa courts on the subJect, remarks by a Youth Court Judge at the conclusIOn of traIl were held to have shown a possIble bIas, and the tnal Judgment was accordIngly taInted. On the facts there IS a lIttle sImIlanty to the case here however some of the general comments are InstructIve SpeakIng for the maJonty FlInn lA at para. 25 adopted some of the dIssentIng reasons of de Grandpre J In Committee for Justice and Liberty v Canada (National Energy Board) (1976), 68 D.L.R. (3d) 716 at pp 735-36 [1978] 1 S C.R. 369 the apprehensIOn of bIas must be a reasonable one, held by reasonable and nght-mInded persons, applYIng themselves to the questIOn and obtaInIng thereon the reqUIred InfOrmatIOn. In the words of the [Federal] Court of Appeal, that test IS "what would an Informed person, VIeWIng the matter realIstIcally and practIcally - and havIng thought the matter through - conclude Would he thInk It more lIkely than not that Mr Crowe, whether conscIOusly or unconscIOusly would not decIde fairly')" I can see no real dIfference between the expreSSIOn found In the decIded cases, be they "reasonable apprehensIOn of bIas" "reasonable SuspICIOn of bIas" or "real lIkelIhood of bIas" The grounds for thIS apprehensIOn must, however be substantIal and I entIrely agree wIth the Federal Court of Appeal whIch refused to accept the suggestIOn that the test related to the "very senSItIve or scrupulous conscIence" AgaIn, at para 27 FlInn lA adopted the words of Lord Demng M.R. In Metropolitan Properties Co v Lannon [1968] 3 All E.R. 304 (C.A) who said Nevertheless, there must appear to be a real lIkelIhood of bIas SurmIse or conJecture IS not enough There must be CIrcumstances from whIch a reasonable man would thInk It lIkely or probable that the JustIce, or chairman, as the case may be, would, or dId, favour one sIde unfairly at the expense of the other Prior or present involvement in the very issue In the aforementIOned case of CommIttee for JustIce and LIberty v Canada (NatIOnal Energy Board) a member of the NatIOnal Energy Board was held to be dIsqualIfied from SIttIng on a case concernIng a proposed pIpelIne, because prevIOUS to hIS appoIntment to the Board he had been Involved In a study group whIch drafted some of the terms of the applIcatIOns to the Board. The maJonty of the Court held that a reasonably well-Informed person would have a reasonable apprehensIOn that he would gIve a bIased appraisal and Judgment on thIS Issue The case clearly turns on the fact that there was personal, pnor Involvement, however slIght, on one sIde of the very Issue dIrectly before the member In hIS capacIty as a member of the board. 8 LeadIng Cases also revIewed Re Tkachuk and British Columbia (Riverview Hospital) (1999) 53 Can. L.R.B.R. (2d) 298 (B C.L.R.B ) In that decIsIOn the folloWIng was said The Board has revIewed the applIcable test to be used when an allegatIOn or apprehensIOn of bIas IS raised. In Sean Parr B C.L.R.B No B211/96 (Leave for ReconsIderatIOn of B C.L.R.B No B81/96), the Board summanzed the applIcable test and ItS approach to charges of bIas The test for determInIng a reasonable apprehensIOn of bIas, as outlIned by the Supreme Court of Canada In Committee for Justice and Liberty v (Canada) National Energy Board, [1978] 1 S C.R. 369 68 D.L.R. (3d) 716 IS whether a reasonably well-Informed person could properly have a reasonable apprehensIOn of a bIased appraisal on the part of the decIsIOn-maker of the Issues to be determIned. The test IS an obJectIve one and the eVIdence must be sufficIent to show the decIsIOn-maker would not approach the case wIth an open mInd Canada Post Corp v CUP W (1992), 62 B C.L.R. (2d) 182 (C A) at p 184 There IS a presumptIOn that an adJudIcator wIll act In a fair and unbIased manner based on the eVIdence before hIm or her There must be more than mere SuspICIOn or an allegatIOn that an adJudIcator wIll not bnng an ImpartIal mInd to bear on the matter There must be eVIdence whIch could lead a reasonable person to apprehend bIas Adams v B C (Workers Compensation Board) (1989), 43 B C.L.R. (2d) 228 (C A) In Re Ontario Hydro (supra) It was stated at paragraph 46 The test for bIas, and specIfically for bIas consIstIng of a lack of ImpartIalIty whIch has been developed In Canada IS whether a reasonable person would apprehend bIas that IS, whether a reasonable person, knowIng the relevant facts and beIng famIlIar wIth a partIcular tnbunal's procedures and decIsIOn-makIng process, would suspect that the IndIVIdual adJudIcator may be unduly Influenced, even If umntentIOnally by Improper consIderatIOns to favour one party or "sIde" In the matter before the adJudIcator I agree wIth that VIew Indeed, I find thIS decIsIOn to be the most helpful to the facts at hand. Vice Chair SurdykowskI was wntIng for the Ontano Labour RelatIOns Board, a tnbunal wIth whIch we share some common features The Gnevance Settlement Board, however has the added advantage of contInuously dealIng wIth the same partIes and the same collectIve agreements There IS a hIghly developed understandIng of the partIes, the Issues and the Junsprudence An applIcatIOn of the facts of thIS case to the relevant standard of reVIew compels the conclusIOn that there IS no reasonable apprehensIOn of bIas Clearly a reasonable person In thIS context could not have a reasonable apprehensIOn of bIas because I have had some dIsclosed expenence wIth a partIcular phrase utIlIzed by the partIes 9 With respect to the Employer's IndIcatIOn that had It known at the tIme the partIes were choOSIng the adJudIcator that I had thIS expenence they would have chosen another Vice Chair I would note that the Employer cannot be surpnsed that I came to the heanng room wIth expenence from numerous heanng days wIth these partIes dealIng wIth vanous L TIP matters I am not persuaded the Employer IS, In any way preJudIced by that expenence gIven that the dIsclosure was made Further the Employer argued that It would be "better" If thIS matter was heard and decIded by someone else That mIght be But that IS not sufficIent reason for me to wIthdraw from thIS matter ArbItrator Kennedy In Re Miracle Food Mart, Steinberg Inc. and UFCW (supra) was appOInted by the Mimster of Labour to determIne a dIspute regardIng the Issue of Sunday shoppIng He was asked to remove hImself due to a reasonable apprehensIOn of bIas because of hIS "assocIatIOn WIth counsel who In Interest, were totally alIgned wIth the company on such a central and hIgh profile Issue as Sunday shoppIng" Partners In hIS large law firm had acted In a leadIng constItutIOnal case on the Issue ArbItrator Kennedy decIded that there was no actual nsk of bIas Further he found that knowledgeable and Informed people mIght realIze that there IS no connectIOn whatsoever between the constItutIOnal Issues of the Sunday shoppIng matter and the contract InterpretatIOn matter raised by the gnevances, It mIght not be so apparent to others who have a dIrect Interest In the outcome He stated that he belIeved he was "a proper person to hear thIS arbItratIOn" and he was conVInced he had no actual bIas However he stated he would wIthdraw unless both counsel notIfied hIm of theIr desIre that he remaIn on the matter In my VIew that case IS dIstIngUIshable on the basIs that those partIes had no partIcular expenence wIth the chair ArbItrator Kennedy was appOInted by the Mimster of Labour not InvIted by the partIes Moreover where a reasonable apprehensIOn of bIas has not been establIshed a publIc tnbunal cannot JustIfy the expendIture of costs that would be assocIated wIth startIng thIS matter agaIn before another Vice Chair merely on the basIs that such an approach would be "better" 10 For all of the foregoIng reasons, the motIOn IS demed. We wIll contInue on our prevIOusly scheduled heanng dates Dated In Toronto thIS 1 ih day of January 2005 -e Vice-Chair