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HomeMy WebLinkAboutReyes 18-02-23 1 IN THE MATTER OF AN ARBITRATION Pursuant to the Labour Relations Act, R.S. 1995 BETWEEN: INTERIM PLACE “Employer” - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (OPSEU), Local 518 “Union” (Individual grievances of Reyes 2012-0518-0004/2014-0518-0014) PRELIMINARY DECISION re ADJOURNMENT ARBITRATOR: Kim Bernhardt On Behalf of the Employer: Sydney Kruth, Counsel, Mathews Dinsdale & Clark LLP On Behalf of the Union: Jane Letton, Counsel, Ryder Wright Blair & Holmes LLP Written submissions were submitted on February 1, 2018 pursuant to the Arbitrator’s January 17, 2018 direction. 2018 CanLII 7680 (ON LA) 2 1. This arbitration was scheduled to be held on January 18, 2018. On January 17, 2018 the parties requested a telephone conference to discuss the Union’s adjournment request, which the Employer opposed. 2. During the conference call the Arbitrator granted the adjournment, for reasons that are discussed below, but the issue remained as to whether conditions should be attached to the adjournment. Specifically, whether I should grant the Employer’s request that the Union should bear the full cost of the cancelled hearing date. The parties were asked to provide brief written submissions on this issue by February 1, 2018, which were submitted. ADJOURNMENT REQUEST The parties are in general agreement about the facts, other than as otherwise noted. 3. The Union submits that during their discussions with the Grievor on January 4 and 5, 2018, they were informed that the Grievor was medically unable to participate in an arbitration process, however because of the usual separation of the parties during a mediation process, the Grievor would be able to participate in a mediation. 4. On January 5, 2018 the Union received a letter from the Grievor’s doctor which stated that the Grievor had been seen by the physician that day and that she “is unable to attend any arbitration hearings (scheduled Jan 18, 2018), …or any direct communication from her former workplace for the next 3 to 6 months…She is at risk of a heart attack being triggered by too much stress.” 5. The two counsels had a telephone conversation on January 11, 2018 to discuss the January 18, 2018 hearing. During that conversation the Employer confirmed that they would be bringing a timeliness motion forward and later confirmed that they were not prepared to mediate the dispute on January 18, 2018. 6. The Union states that they had to wait for instructions from their client as to whether to request an adjournment, and the request for an adjournment 2018 CanLII 7680 (ON LA) 3 of the January 18, 2017 hearing was sent to the Employer on January 16, 2017. 7. Also, on January 16, 2018 the Employer provided the Union with the particulars of the timeliness objection, as had been requested; the Employer did not consent to the Union’s request to consolidate these grievances with the Grievor’s subsequent grievance; and the Employer proposed alternate methods for proceeding with the January 18, 2018 hearing that would not require the Grievor to be physically present (such as teleconference). 8. On January 17, 2018 the Union renewed its request for an adjournment as the Union’s position was that it was important that the Grievor be able to fully participate in person at the arbitration and because the January 17, 2018 particulars from the Employer had made it clear that the Union needed to speak to certain individuals about the timeliness motion, and that those individuals were not available prior to the hearing. 9. As the Employer was not prepared to consent to the adjournment of the January 18, 2017 hearing a conference call was held between the counsel and myself. During the call, I granted the adjournment and asked the parties to provide brief submissions on the Employer’s request that the adjournment be subjected to the condition that the Union pay all the costs of the cancelled January 18, 2017 hearing. 10. I confirm that the adjournment was granted and have decided not to impose any conditions for the reasons outlined below. Employer’s Argument 11. The Employer argues that the Union was aware of the Employer’s position regarding the arbitrability and timeliness of the grievances since March 2016. At that time the Union informed the Employer that the grievances had been held in abeyance and that they were now being moved forward . 12. The Employer states that it continued to notify the Union of its intention to argue that the grievances were not arbitrable on several subsequent occasions throughout the arbitration process. On January 16, 2018 the Employer provided the Union with particulars concerning its timeliness objection. 2018 CanLII 7680 (ON LA) 4 13. In its February 1, 2018 submissions the Union confirms that it was put on notice of the timeliness objection at the time of the referral to arbitration (which occurred around June 2017). 14. On January 16, 2018, two days before the hearing, the Union requested an adjournment on the basis that the Grievor was unable to participate in the January 18, 2018 hearing. Attached to the request was the January 5, 2018 medical note. The Union renewed its request for an adjournment on January 17, 2018 on the basis that the Grievor would not be able to participate in person, and because the Union would not be able to have the witnesses necessary for the preliminary objection argument for the January 18, 2018 hearing. 15. The Employer argues that the adjournment of the hearing should be subject to the condition that the Union pay the costs. According to the Employer, not only is it within the arbitrator’s jurisdiction to order such costs (which is not disputed by either party), but it would be appropriate to such an order as the delay that was incurred by the adjournment was not beyond the Union’s control. 16. The Employer submits that the Union had notice of the preliminary motion well in advance of the January 18, 2018 hearing date and could have arranged to have the required witnesses prepared and present. Similarly, The Employer first heard that the Grievor would not be able to attend on January 16, 2018, even though the medical note was provided to the Union on January 5, 2018. 17. The Employer submits that the principle of fairness requires that the Union bear the cost of the January 18, 2018 hearing as they did not confirm their intention to seek an adjournment until the afternoon of the day before the hearing, which denied the parties the opportunity to mitigate any cancellation costs. The Employer also referred to the fact that as a not- for-profit agency the cancellation costs could be put to better use serving its vulnerable clients. Union’s Argument 18. As mentioned, the Union does not dispute that it was put on notice of the timeliness objection at the time of the referral to arbitration. 2018 CanLII 7680 (ON LA) 5 The Union’s counsel states that when they received the information on January 5, 2018 that the Grievor would not be able to attend a hearing but could participate in a mediation (as it would involve the parties being in separate rooms), they thought it best to wait until they discussed with the Employer’s counsel how to proceed on January 18, 2018 date. 19. Although the Union raised the issue of mediation with the Employer on January 11, 2018, the Employer did not agree to proceed with mediation. As the Union counsel’s instructing client was unavailable until the following week, it was not until January 16, 2018 that the counsel received instructions to seek an adjournment of the January 18, 2018 hearing, which the Employer refused. 20. On January 17, 2018 the Union renewed its request for an adjournment as it became apparent that the necessary witnesses were not available and because the Union and its counsel believed that it was important that the Grievor be able to fully participate in person at the arbitration given the nature of her individual grievances. 21. The Union argues that it did not unnecessarily delay the request for the adjournment but that given the change in the Grievor’s employment status (as she was terminated following the initial grievances), it was reasonable to determine whether mediation could be attempted the first day of hearing. Because of the differences between mediation and arbitration, it might have been possible to proceed on January 18, 2018 had the day been utilized for mediation. Once it was clarified that the matter would be arbitrated on January 18, Union counsel sought instructions from her client upon his return from vacation about proceeding in the absence of the Grievor, which they decided they could not in order to ensure a fair and open process. ANALYSIS 22. As referred to by both parties Arbitrator Solomatenko addressed the issue of adjournments and when any terms or conditions should be attached to an adjournment in Shoppers Meat Markets Ltd. (Metro Provisions) and United Food and Commercial Workers International Union, Local 633 [1984] O.L.A.A. No. 84, 16 L.A.C. (3rd) 184 (Shoppers Meat Market). 2018 CanLII 7680 (ON LA) 6 23. In deciding that the adjournment should be provided, I adopt the rationale expressed in Shopppers Meat Market that the basic principles of natural justice require that each party have the opportunity to fully present its case and participate in a hearing. 24. Given the unchallenged January 5, 2018 letter from the Grievor’s physician which stated that she “is unable to attend any arbitration hearings (scheduled for Jan 18, 2018)…” and that she would be “at risk of a heart attack being triggered by too much stress”, the Grievor was unable to attend the hearing on that date. 25. The Employer had suggested potential accommodations to enable some participation by the Grievor, however these were not acceptable to the Union as the Grievor would not be able to be present and adequately provide her input during the hearing. Nor was it clear to me whether the interaction with the Employer via teleconference would breach the conditions set out in the January 5, 2018 medical note that the Grievor not have “any direct communication from her former workplace”. 26. The Employer also suggests that they were prevented from any possible mitigation of costs by the Union’s delay in notifying them about the Grievor’s medical condition (from January 5 to January 16, 2018 ). The Union explained that the delay was not due to any bad faith, but in their attempting to determine whether or not there would be a way for the Grievor to participate on January 18 (if a mediation session was held). 27. Regardless of whether the Employer was provided with the Grievor’s medical condition on January 5 versus January 16, 2018, the fact remained that the Grievor would not have been able to participate in an arbitration hearing on January 18. This on its own was sufficient reason to grant the adjournment of the hearing, as I ordered. 28. Turning to the Employer’s request that the adjournment should be subject to the condition that the Union pay the costs of the January 18, 2018 cancellation, there was no dispute amongst the parties that an arbitrator has the discretion to impose such a condition upon a party as a term of an adjournment. 29. The issue was whether it was appropriate to impose such a condition given the circumstances in this situation. 2018 CanLII 7680 (ON LA) 7 30. I agree with the principles that are laid out in Shoppers Meat Market about when it is appropriate to impose a condition on a party to pay all of the costs of an adjournment. 31. The starting point is the long-established principle of the labour arbitration process that each party equally shares the costs of the process, and arbitrators should make such an order only in extraordinary circumstances. Unexpected events (such as restrictions due to health) can occur to any party, and such interruptions in the arbitration process usually balance out over the course of the labour relationship. 32. Some of the factors that help in determining whether to order costs are outlined in paragraphs10 and 11 of the Shoppers Meat Market decision:  Did the affected party incur extraordinary costs (such as significant transportation costs for witnesses)? If so such situations should receive strong consideration for reimbursement.  Was the party affected given prior notice of the adjournment request?  Was there an abuse of process by the party requesting the adjournment, or was the party responsible for numerous delays?  The awarding of costs on a punitive basis should not be present in a labour relations context given the ongoing relationship and the existence of a certain amount of give and take to the collective bargaining relationship. 33. In applying these factors to the current case, there were no extraordinary costs associated with the cancellation of the January 18, 2018 hearing; meeting room and arbitrator cancellation fees are common features of the process. 34. The Employer is correct that the Union had prior notice of the preliminary objections that were raised. However, by the time that the particulars of the objections were known to the Union’s counsel (on January 16, 2018) the necessary witnesses were not available to be prepared. 35. The Employer argued that the general rule of awarding the costs of an abortive hearing only in extraordinary circumstances should not apply when the absence of certain witnesses and advisers is not beyond the 2018 CanLII 7680 (ON LA) 8 reasonable control of the party requesting the adjournment, as per Arbitrator Gorsky’s decision in Hawker Siddeley Canada Inc. v. IAM, Lodge 1922 (Hawker Siddeley),1989 CarswellOnt 5010. The Union argued that the decision was not applicable to the present case as Hawker Siddeley was held under the statutory directive to be held and resolved promptly (formerly s. 45 now s.49 of the LRA), and that in that situation, the employer had the control over the vacation schedules of the employee witnesses. 36. In this case it was not within the Union’s authority to either deny the witnesses vacation leave or to order them back from their vacations. Given the Union’s request that the date be used for mediation, it was not until the Employer refused the request to mediate (as they were fully entitled to do) that there was any urgency to preparing the witnesses to argue the preliminary matter. 37. There was no suggestion that the Union was abusing the process by trying to delay matters; this was the first scheduled day of hearing. The Union did request that the Employer agree to the adjournment on a couple of occasions prior to the hearing, and then asked for a conference call with the arbitrator to determine the matter the day before the hearing, which could prevent people from attending the hearing, only to have it adjourned after it commenced. There was no suggestion that these damages should be awarded on a punitive basis, and I would not have ordered any such damages in any event. 38. The unavailability of witnesses involved with the preliminary objection could have necessitated the adjournment on the basis that natural justice would require that the Union be able to fully present its case. DECISION 39. The adjournment was granted based on the Grievor’s being unable to attend. 40. There is no condition attached to this adjournment and the parties are ordered to equally share the costs of the cancelled January 18, 2018 hearing. 2018 CanLII 7680 (ON LA) 9 It is my understanding that the parties are not currently seeking to schedule another date for this matter as the Grievor has subsequently been terminated and that matter is proceeding before another arbitrator. The parties are discussing whether these grievances will be dealt with in conjunction with that matter. Issued this 23rd day of February, 2018 in Oakville, Ontario by Kim S. Bernhardt, Sole Arbitrator 2018 CanLII 7680 (ON LA)