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HomeMy WebLinkAboutChilicka Group 18-07-11 IN THE MATTER OF AN ARBITRATION B e t w e e n: CANADIAN BLOOD SERVICES (the "Employer”) - and - ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 5103 (the “Union”) and in the matter of a group grievance concerning reimbursement for travel mileage (2015-5103- 0001) Russell Goodfellow – Sole Arbitrator APPEARANCES FOR THE EMPLOYER: Sarah A. Eves, counsel Kim Rodney Lisa Bruce Nancy Banning Ryan Plener APPEARANCES FOR THE UNION: Ed Holmes, counsel Aida Castillo Anna Chilicka Hearing held March 8, 2016, August 1, 2017, and May 31, 2018. 2018 CanLII 65210 (ON LA) AWARD This award involves a group grievance filed on behalf of 24 employees. The grievance claims a failure by the Employer to reimburse employees for work-related mileage. The grievance concerns the years 2010 to 2014. Articles 25.01(c) and (d) of the collective agreement concern transportation for regional employees to clinic locations. Amongst other things, the agreement requires employees using their own vehicles to "provide a form T2200 to their manager or designate, for the Employer to complete its portion, as required for CCRA submission". The Employer did that but employees’ claims for deductions appear to have been denied by Revenue Canada. On the first day of hearing, it was agreed that the Employer would write a letter to Revenue Canada, for submission by the individual employees, clarifying the facts. The hearing was adjourned to allow this to occur, with a right in the Union to have the matter brought back on in the event the initiative proved unsuccessful. The Employer wrote the letter and, on the second day of hearing, August 1, 2017, which was convened at the Union’s request, we were initially advised that had been little and, later, no change in Revenue Canada’s position. In response to a request for production by the Employer, I then issued the following order: IN THE MATTER OF A GRIEVANCE under the Labour Relations Act, 1995 and pursuant to a Collective Agreement B E T W E E N: CANADIAN BLOOD SERVICES (Employer) -and- ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 5103 (Union) 2018 CanLII 65210 (ON LA) 2 (Chilicka Group Grievance - 2015-5103-0001 Re Transportation Allowance) Having heard the submissions of the parties this date, I hereby grant the Employer's motion for disclosure and make the following Order: 1. To the extent they have not previously been provided to the Employer's legal counsel, the Union will provide the Employer with the following documents for each Grievor listed in the Grievance by no later than November 1, 2017: (a) All T2200 forms submitted to the CRA for the 2010, 2011, 2012, 2013 and 2014 tax years; (b) All individual tax returns submitted to the CRA for the 2010, 2011, 2012, 2013 and 2014 tax years; (c) All Canadian Blood Services T4 slips for the 2010, 2011, 2012, 2013, and 2014 tax years; (d) All written communications between each Grievor and the CRA regarding claims for employment expenses made pursuant to form T2200 for the 2010, 2011, 2012, 2013 and 2014 tax years, to the current date; (e) Without limiting the generality of paragraph (c), all Notices of Assessment, Notices of Reassessment, Statements of Account, Notices of Objection/Appeal and related documents relating to each Grievor's individual tax returns for the 2010, 2011, 2012, 2013 and 2014 tax years; and (f) Mileage logs for 2010, 2011, 2012, 2013, and 2014. 2. If the Union fails to provide all this information for any Grievor to counsel for the Employer by November 1, 2017, the Grievance, as it relates specifically to that Grievor, is hereby dismissed. I remain seized. The hearing was then adjourned for a second time to allow for the required production to occur. On the third day of hearing, based on the second numbered paragraph of my order and the facts that follow, the Employer submitted that the grievance was dismissed and I was functus officio. The Employer’s submission had been foreshadowed by an email from Employer counsel to Union counsel, dated November 3, 2017, which read: I have had one of our associate lawyers put together a chart (see attached) listing all of the Grievors' tax documents we received from you prior to the 2018 CanLII 65210 (ON LA) 3 August 1, 2017 hearing, and between August 1 and November 1, 2017. You will see that none of the Grievor's fully complied with the order for disclosure dated August 1, 2017. In particular, we have not received any of the Grievor's tax returns. These are fundamental to the Grievors' claims because the schedules to the returns will show the specific amounts claimed by the individual Grievors for mileage. While two of the Grievors (Bonifacio Bertumen and Chetnaben Bhatt) provided summaries of their tax returns for some of the years in question, these summaries do not list the dollar amounts claimed for mileage. In any event, the disclosure order clearly stated that the Union provide the Employer, for each Grievor, "...[A]ll individual tax returns submitted to the CRA for the 2010, 2011, 2012, 2013, and 2014 tax years...". As you know, the disclosure order also states: 2. If the Union fails to provide all this information for any Grievor to Counsel for the Employer by November 1, 2016, the Grievance, as it relates specifically to that Grievor is hereby dismissed. The Employer, therefore, takes the position that the grievance is dismissed against all of the grievors and the May 31, 2018 hearing continuation date should be cancelled. If OPSEU takes a different position, I would appreciate hearing from you at your earliest opportunity. On November 14, 2017, Union counsel replied: I have received instructions to advise that the members and the Union still intend to proceed. I am advised that additional documents may be forthcoming and that there may have been some confusion over exactly what was requested in the Order. It would appear as though the arbitrator will have to address this issue. At the hearing on May 31, 2018, the Employer produced an updated version of the chart referred to in counsel’s November 3, 2017, email. The chart sets out the names of the 24 grievors, the documents required to be produced and which documents were and were not produced. The chart reveals that nine grievors produced no documents at all. With respect to the remaining 15, the quantity of production varied from very little, to some, to, in a few instances, much. As noted by the Employer, however, no employee produced a single tax return for any of the years, the second item listed in the order. The Employer submits that is the beginning and end of the matter. Having regard to the second numbered paragraph of the order, the grievance is dismissed as against each and every grievor and I am functus officio. 2018 CanLII 65210 (ON LA) 4 In making this submission, the Employer asserts the order could not have been clearer. It states, precisely, what was required to be produced and specifies, clearly and unequivocally, the consequences to the grievance in respect of any individual that fails to comply: the grievance is dismissed as against that grievor. The Employer submits the order was “final” and, since none of the grievors fully complied, there is nothing left of the grievance. All of the individual grievances that make up the group grievance have been dismissed. While noting that "I remain seized", the Employer submits that was not to rescind, relieve against, or vary the terms of the order but to determine whether there had been compliance and, if so, to proceed further. Since there is no dispute that no grievor fully complied, the Employer submits the grievance is dismissed in its entirety. The Employer referred to the following cases: Toronto (Metropolitan) v. C.U.P.E., Local 43, 1974 CarswellOnt 1487, 8 L.A.C. (2d) 54 (Carter); Chandler v. Assn. of Architects (Alberta), [1989] 2 SCR 848, 1989 CarswellAlta 160; Jacobs Catalytic Ltd. v. I.B.E.W., Local 353, 6558, (2009) O.R. (3d) 677, [2009] ONCA 749, 2009 CarswellOnt 6558, [2009] O.L.R.B. Rep. 759; Lake Ontario Steel Co. v. U.S.W.A., Local 6571, [1992] O.L.A.A. No. 683, 25 C.L.A.S. 656 (Mikus); Rainbow Concrete Industries Ltd. v. I.U.O.E., Local 793, 2001 CarswellOnt 5942, 107 C.L.A.S. 147, 209 L.A.C. (4th) 294 (Surdykowski); Vale Canada Ltd. and USW, Local 6500, 2012 CarswellOnt 17022, 113 C.L.A.S. 204 (Hayes); and Madawasaka Valley (Township) and Teamsters, Local 91, 2015 CarswellOnt 585, [121 C.L.A.S. 263 (Starkman). The Union submits the grievance can and should continue because I remained seized, broadly. The Union submits that functus officio is a “flexible” doctrine that courts and tribunals are reluctant to apply without the real issues having been determined. In particular, the Union submits, it should not apply to interim or procedural orders and the cases to which the Employer referred can be distinguished on that basis. The Union submits that issues of procedural non- compliance are typically dealt with through the doctrine of "abuse of process". According to the Union, this would allow for the extent of any non-compliance to be considered and, perhaps, weighed on the merits, possibly after a further opportunity to produce is afforded. In this case, the Union submits, the grievors are lay people, not accountants, and three or four of them made “extensive efforts” at production. 2018 CanLII 65210 (ON LA) 5 The Union's first position, therefore, is the grievance should be allowed to proceed on behalf of all 24 grievors. If that position is not accepted, however, the Union submits that it should only be dismissed as against the nine grievors that produced no documents at all. The Union refers to the following additional cases: Murphy v. Canada (Adjudicator appointed under the Canada Labour Code), 1993 CarswellNat 1355, [1993] F.C.J. No. 1236 (F.C.C.A); Elsipogtog First Nation Band Council v. Peters, 2012 CarswellNat 1959, 2012 CarswellNat 961, [201] F.C.J. No. 397 (F.C.T.D.); Crown in Right of Ontario and OPSEU (Hunt et al.), GSB# 2001-0534, 2003- 2944, 2004-3263 (Ont. G.S.B. – Abramsky) and Ontario (Liquor Control Board) and OLBEU (Goncalves), 2005 CarswellOnt 11276, 82 C.L.A.S. 286 (Ont. G.S.B – Carrier). The Employer responds that the "fundamental flaw” in the Union's argument is its characterization of the order as "interim”. The Employer submits that, although dealing with a procedural matter, it was "final" with respect to the grievance of any individual grievor that failed to comply: the individual’s grievance was dismissed. The Employer submits that all of the cases to which the Union refers can be distinguished on that basis and, further, that the decision in Vale Canada Ltd. and USW, Local 6500, supra, involved the dismissal of the grievance for a failure to comply with a procedural order. The Employer adds, however, that even if one were to approach the matter from an “abuse of process” perspective – a possibility, the Employer submits, that is simply not available – the same result should obtain. And that is because there is no satisfactory explanation for any of the failures to produce. Employer counsel submits that an employee "does not need to be an accountant to know what a tax return is", adding that such returns were of the essence of the grievance. Thus, even on an abuse of process approach, the Employer submits, the grievance is at an end. I agree with the Union that, at least in the administrative law context, the cases refer to a “flexibile” approach being taken to the doctrine of “functus officio” (see e.g. Chandler v. Association of Architects (Alberta), supra, and Elsipogtog First Nation Band Council v. Peters , supra) and that it typically applies following a determination on the merits. I also agree that the customary vehicle for dealing with issues of procedural non-compliance is “abuse of process”: see e.g. The Crown in Right of Ontario (Ministry of the Attorney General) and OPSEU (Hunt et 2018 CanLII 65210 (ON LA) 6 al.), supra, and The Crown in Right of Ontario (Liquor Control Board) and OLBEU (Goncalves), supra. However, I agree with the Employer that is not an option here. The terms of my August 1, 2017, order were clear and unequivocal with respect to the consequences to any individual’s grievance in the event of any non-compliance. The order states, “If the Union fails to provide all of this information for any grievor to counsel for the Employer by November 1, 2017, the Grievance, as it relates specifically to that Grievor, is hereby dismissed” (emphasis added). Since there is no dispute that no grievor fully complied, the necessary effect of the order is that the grievance is already dismissed as against each and every grievor. The order, to put it slightly differently, was not silent about the effects of non-compliance; it did not state that the grievance “may be” dismissed in the event of non-compliance; nor did it state, even, that the grievance “will be” dismissed in the event of non-compliance, arguably requiring some further decision by me. It stated that the grievance is hereby (meaning is deemed to be or is automatically) dismissed as against any grievor in respect of whom complete production is not made by the specified date. Since there is no dispute that complete production was not made, the necessary consequence is the grievance has already been dismissed as against all of the grievors. I agree with the Employer that the order could not have been clearer or more final in that regard. While it is true, as the Union emphasized, that “I remain seized”, as the Employer submits that was not to rescind or alter the finality of any possible dismissals but to determine whether there had been compliance and, if so, to proceed further. Finally, although offered by the Employer in connection with the Union’s “abuse of process” analysis, I would note my agreement with Employer counsel’s further submission that there was no satisfactory explanation for the failures to produce. I agree that the required items were clearly identified and, in particular, that there can be no doubt what a tax return is. However, had there been uncertainty about any aspect of the order, the Union was, of course, available to assist and explain. 2018 CanLII 65210 (ON LA) 7 In the result, in accordance with the terms of my August 1, 2017, order and the undisputed facts, I find that the grievance is dismissed and I am functus officio. DATED at Toronto this 11th day of July 2018. Russell Goodfellow – Sole Arbitrator 2018 CanLII 65210 (ON LA)