HomeMy WebLinkAboutDesforge 08-07-02
IN THE MATTER OF AN ARBITRATION
Pursuant to the Colleges Collective Bargaining Act, R.S.O. 1990 c.15
Between:
ALGONQUIN COLLEGE
(the College)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, Local 415
(the Union)
Re: Grievance No. 05A43 - Serge Desforge
OPSUE File No. 2006-0415-0043
AWARD
PAULA KNOPF - ABITRATOR
APPEARANCES:
J.D. Sharp - Counsel for the College
Naslin Mohamed - Counsel for the Union
This matter was presented by way of written submissions
. completed June 13, 2008
This case deals with two issues:
1. Can a party unilaterally withdraw a grievance on a "without prejudice
basis," and
2. Can the circumstances of a unilateral withdrawal of a grievance make one
party solely liable for the costs of the proceedings.
While the parties differ about some of the circumstances leading up to this
dispute,. there is no disagreement about the relevant facts. A grievance was filed
on April 28, 2006 principally alleging that the Grievor had been "required to
attend an Independent Medical Examination without reasonable cause." The
grievance was processed through the Grievance Steps under the Collective
Agreement and then referred to arbitration on September 19, 2006. Pursuant to
the parties' scheduling practices, the matter was assigned to an arbitrator and a
hearing was scheduled for November 26,2007.
In late October 2007, counsel for OPSEU wrote to counsel for the College
requesting production of "all documentation/evidence which the College
intend[ed] to rely on to support its claim that the medical information provided by
[the Grievor] was insufficient, as well as why an independent medical
examination [was] required." This resulted in a flurry of exchanges between
counsel, up to and including Friday, November 23rd, about the substantive,
procedural and production issues that could arise at the hearing, set for the
Monday that followed.
On Sunday, November 25th, at approximately 5:30 p.m., the Grievor informed
Union counsel via telephone that he had decided to withdraw the grievance. This
was then confirmed in writing, via email saying; "After serious consideration, I
have decided to withdraw my grievance #06A43. Please take appropriate steps
to cancel the grievance."
1
Following the receipt of these instructions, Union counsel immediately tried to
contact the Arbitrator and counsel for the College, via email and voicemail.to
advise of the withdrawal and the cancellation of the next day's hearing. The
email sent,to College counsel at 6:27 p.m. indicated, in part; "I have just received
word from the Grievor . . that he is withdrawing [the grievance] on a without
prejudice basis." The Union phrased the withdrawal on a "without prejudice"
basis in order to preserve the Grievor's rights with regard to another upcoming,
related grievance.
With the able assistance of this arbitrator's assistant, Linda Kotopoulis, both the
Arbitrator and College counsel were notified personally on Sunday evening,
November 25th of the cancellation. This notice enabled the parties to avoid the
costs of the arbitrator flying to Ottawa the next day.
On Monday, November 26th, College counsel wrote to counsel for the Union
indicating that the College was not accepting that the grievance could be
withdrawn unilaterally on a "without prejudice basis" and indicating that it would
seek costs for the cancelled day of arbitration. Counsel for the parties then
agreed to remit those issues to this arbitrator, by way of written submissions.
THE SUBMISSIONS OF THE PARTIES
Submissions of the College
The College argues that while the Union is entitled to unilaterally withdraw a
grievance, it cannot do so on a "without prejudice" basis. It was stressed that the
College never consented to the withdrawal of the grievance on a "without
prejudice" basis. It was said that the Union cannot attach any conditions on the
withdrawal without the College's consent. In support of these submissions, the
College relies upon: Brown and Beatty Canadian Labour Arbitration, 4th Edition
2
(Canada Law Book2007) at 3:3233; Bilt Rite Upholstering Co. v. US. WA., Loc.
32, UO. (1990), 9 L.A.C. (4th) 361 (Barrett); Burnaby (City) and C.UP.E.
(Rossner) (2000), 91 L.A.C. (4th) 40 (Sanderson); Speedy Auto Glass Ltd. (c.o.b.
Speedy Auto Window Glass) v. United Automobile, Aerospace and Agricultural
Implement Workers of America (UA W-CLC), Local 2381 (Chaves Grievance),
[1991] O.L.A.A. No. 554 (Solomatenko).
The College also argues that the Union should be liable for the full cost
consequences of the "last minute unilateral withdrawal" of the grievance. It was
stressed that the case did not result in a negotiated settlement, the College did
not consent to the withdrawal and there has been no resolution of the issues
raised in the grievance. Further, the Union did not seek the College's consent
for the withdrawal. The College also argues that this Union has had a "history"
of pursuing grievances to arbitration and then withdrawing them with "little or no
notice." The College complains that this practice has resulted in it incurring
significant financial and "other" costs associated with the preparation for each
expected arbitration hearing, this one included. The College argues that this
situation is "unfair" and "does not reflect sound labour relations." Accordingly, the
College argues that where the last minute withdrawal of a grievance is the result
of a unilateral action on the part of the Union, the Union ought to bear the full cost
of the withdrawal. Counsel for the College argues that the discretionary authority
to make such an order is consistent with the jurisprudence that allows for costs
being awarded as a term of the granting of an adjournment; See Brown and
Beatty, Canadian Labour Arbitration, supra, at 2:1430.
Submissions of the Union
The Union pointed out that it had originally wanted to withdraw this grievance on
a "without prejudice basis" in order to preserve the Grievor's rights with respect to
another upcoming hearing that was scheduled to deal with his
accommodation/return to work grievance. As matters turned out, the parties
3
were able to resolve that in February, 2008. In its written submissions for this
case, received after that settlement was achieved, the Union made no
substantive submissions made with respect to the issue of whether the Union can
withdraw a grievance on a "without prejudice basis." Instead, the Union argued
that that a ruling on this issue is no longer necessary because the Union now
agrees to the "unconditional withdrawal" of the grievance before this arbitrator.
Turning to the issue of costs, the Union argues that Article 32.03 E of the
Collective Agreement precludes an arbitrator from making any ruling with respect
to costs, including assigning the costs to only one part. The Article provides:
The College and the Union shall each pay one-half the remuneration and
expenses of the. . . . .person it appoints as arbitrator.
Counsel for the Union also submitted that the foiiowing cases iilustrate that an
order for costs has been denied in various situations on the basis of the Colleges
Collective Bargaining Act, RS.O. 1990c.15 and the Collective Agreement;
OPSEU v. Cambrian College (Selecky), April 30th 193 (R McLaren); OPSEU v.
Humber College, May 24th, 1994 (Swan); OPSEU v. Sheridan College (Union
Grievance), January 2, 1007 (Mitchnick); Brown and Beatty, supra, at 2:1430.
The Union disputes that it has acted unfairly and inappropriately in this situation.
It stresses that Union counsel went to great lengths to advise the College's
counsel of the Grievor's withdrawal, as soon as this occurred. The Union also
suggests that the parties' history of "last minute" settlements and frequent resort
to arbitration is the result of what it describes as "the College's refusal to take the
grievances more seriously during the grievance procedure." The Union asks for
a ruling to confirm that the College and the Union each have to pay one-half of
the costs associated with the cancellation of the hearing day.
4
The Reply Submissions of the College
The College urged this arbitrator to make a ruling on the issue of the ability to
unilaterally withdraw a grievance on a "without prejudice" basis, arguing that the
Union's reasons for withdrawing are irrelevant and that these parties need a
ruling in order to give guidance to their ongoing labour relations. The College
also took umbrage with the Union's characterization of the labour relations history
between the parties and with the suggestions as to the cause.
THE DECISION
It should be said at the outset that the decision in this case is based solely upon
the events surrounding this case. The parties' reference to previous proceedings
and their different perspectives of their labour relations history have been
completely ignored.
The first question to address is the issue of whether a party can unilaterally
withdraw a grievance on a without "prejudice basis." In some respects this issue
is now moot between the parties with respect to this Grievor because of their
settlement of his substantive grievance before the submissions on this issue
were completed. However, in the interests of providing guidance to the parties,
and given the effort taken by the parties to bring closure to these proceeding
through the filing of their significant submissions, it is appropriate to indicate that
the College's position has merit. While a party filing a grievance can always
withdraw it, that party cannot insulate itself from the consequences of that
withdrawal simply by asserting that the withdrawal is "without prejudice." If the
other party agrees to those terms, then the condition comes into play. But absent
. such consent, the withdrawal will not be considered as being "withoutprejudice."
As a result, the other party could make submissions to a subsequent tribunal
regarding the effect of the withdrawal. This was recognized in Burnaby (City)
and C.UP.E, supra, at p. 46;
5
. .
a party that withdraws the grievance from arbitration should not
attempt to insulate itself from the potential consequences of the decision it
has made by seeking to persuade an arbitrator to impose terms such as
"without prejudice of precedent", unless there are different circumstances
than those in this case. The employer should not be denied its opportunity,
if it is so inclined, to make submissions to another tribunal regarding the
effect of the withdrawal from arbitration on the deliberations of that
tribunal. It will be up to that tribunal to decide the issue put to it without
regard to terms of conditions in the arbitration award.
It is important to note from this passage that it is not up to the arbitrator who was
scheduled to hear the withdrawn grievance to decide the consequence of the
unilateral withdrawal. That will be decided by the next arbitrator dealing with the
issues raised in the original grievance, if and when the withdrawal becomes
relevant. Therefore, all that can be said at this point by this arbitrator, is that the
principles and authorities cited by the Empioyer are weii accepted, rational and
worthy of consideration in the parties' future dealings with each other.
Turning to the issue of costs, it should be clear that the dispute about the
apportionment of costs relates to the costs of the cancellation of the arbitrator
and the scheduled hearing room. This is not a claim for legal fees. However, it
was quite predictable that the College would be frustrated about incurring the
costs of preparation of a case, only to be told on the eve of the hearing that the
case has been withdrawn. However, that cost is not recoverable in the arbitration
process, nor is it being claimed here. This claim is simply for the Union to bear
the full costs associated with the cancellation of the arbitrator and the hearing
room. It should be noted that due to the diligence of counsel for the Union and
this arbitrator's assistant, the costs were kept at minimum because they were
able to avert the cost of the arbitrator flying from Toronto to Ottawa.
There are situations when arbitrators grant adjournments after receiving an
undertaking by the party seeking an adjournment to pay the costs of the
cancellation. In those situations, the undertaking to pay the costs is considered
as a condition to the granting of the adjournment. See Brown and Beatty, at
6
..
2:1430, supra. However, that was not the situation in this case. Further, there is
no authority for the proposition that an arbitrator under this Collective Agreement
or the Colleges' Collective Bargaining Act, supra has the authority to order only
one side to pay costs. The Collective Agreement and the arbitral authority
indicate that no such authority exists. Article 32.03 E dictates that a College and
the Union will each pay one half of the arbitrator's fees and expenses. This holds
true no matter how frivolous, protracted or expensive the proceedings become, or
who succeeds in the end. Therefore, it also holds true if and when the hearing is
cancelled. There is nothing in the situation of this case that overrides the
Collective Agreement's requirement that the parties bear the costs of the
arbitrator equally. This conclusion is supported by all the cases cited by counsel
for the Union, above. Accordingly, the request to apportion the costs of the
cancelled hearing exclusively to the Union is denied.
Dated at Toronto this 2nd day of July, 2008
7