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HomeMy WebLinkAbout2009-1749.McNally.09-09-25 Decision Commission de Commission de Crown Employeess Grievance Settlement Grievance Settlement règlement des griefs règlement des griefs BoardBoard des employés de la des employés de la Couronne Couronne Suite 600 Suite 600 Bureau 600 Bureau 600 180 Dundas St. West 180 Dundas St. West 180, rue Dundas Ouest 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Tél. : (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Fax (416) 326-1396 Téléc. : (416) 326-1396 Téléc. : (416) 326-1396 GSB#2009-1749 GSB#2009-1749 UNION#2006-0506-0007UNION#2006-0506-0007 IN THE MATTER OF AN ARBITRATION IN THE MATTER OF AN ARBITRATION UUnnddeerr THE CROWN EMPLOYEES COLLECTHE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT TIVE BARGAINING ACT BBeeffoorree THE GRIEVANCE SETTLEMENT BOARD THE GRIEVANCE SETTLEMENT BOARD BETWEENBETWEEN Ontario Public Service Employees Union (McNally) Union - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFOREVice-Chair Richard Brown FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Omar Shahab Ministry of Government Services Counsel HEARING August 27, 2009. - 2 - Decision [1]Theresa McNally filed a grievance, dated June 21, 2006, asking to be treated as a full- time employee. In particular, she wants to be treated like a full-time employee in relation to her pension. The employer contends this grievance is barred by two earlier awards dismissing grievances dealing with Ms. McNally?s entitlement to benefits including pension. I [2]Ms. McNally began working for the Ministry of Transportation at its Kenora Avenue office in Hamilton in 1976 . She has held the classification of senior licensing clerk OAG10 since 1989 or 1990. Ms. McNally first injured her right knee at work in 1991 and has suffered recurrences of the injury. She was awarded a future economic loss (FEL) award by the Workplace Safety and Insurance Board. [3]Ms. McNally has never worked more than eighteen hours weekly since September of 1995. Despite her reduced hours, she was treated until 1999 as a full-time employee for the purpose of vacation, statutory holidays, pension and health and welfare benefits. When her status was converted to that of a regular part-time employee in November of 1999, she was told her benefits would be reduced accordingly and this announcement prompted the grievance dated January 11, 2000. A second grievance was filed on October 11, 2000 shortly after the reduction was implemented. [4]These two grievances were addressed during five days of hearing in 2003. Contending the denial of full-time benefits violated the collective agreement, the union then relied upon articles 41.4 and 42.3 of the collective agreement: 41.4 Where an employee receives an award under the Workplace Safety and Insurance Act and the award applies for longer than the period set out in Article 41.2 (i.e. three (3) months), the Employer will continue subsidies for Basic Life, Long Term Income Protection, Supplementary Health and Hospital and Dental Plans for the period during which the employee is receiving the award. - 3 - 42.3 The employer will continue to make pension contributions and premium payments for the Dental Plan and Supplementary Health and Hospital on behalf of the employee, at no cost to the employee, while the employee receives or is qualified to receive L.T.I.P. benefits under the plan, unless the employee is supplementing a Workplace Safety and Insurance award. [5]The employer?s response was that article 41.4 did not apply to the facts at hand because the grievor?s FEL award was not an ?award under the Workplace Safety and Insurance Act? within the meaning of article 41.4. [6]In the alternative, the union argued the denial of full-time benefits to a disabled employee unable to work full-time, even if not a violation of the collective agreement, was discrimination based on handicap in contravention of the Human Rights Code. [7]In a decision dated October 16, 2003, I first addressed the collective agreement. Rejecting the employer?s argument about a FEL award, I wrote: The foregoing analysis leads me to conclude the grievor is entitled to the protection afforded by article 41.4. Having come to this conclusion, I need not address the union?s alternative argument about article 42.3, because union counsel concedes the latter article does not apply to an employee entitled to the benefit of the former. (page 6) I also noted: [A]rticle 41.4 does not preclude the employer from reducing some of the grievor?s benefits below the level previously enjoyed by her?i.e. pension, sick leave, statutory holidays and vacation. (page 6) [8]I then considered whether the reduction of these benefits contravened the Human Rights Code. Applying the Court of Appeal?s decision in Ontario Nurses? Association v. Orillia Soldiers Memorial Hospital (1999), 169 D.L.R. (4th) 489, I wrote: [T]here is nothing discriminatory about requiring work in exchange for compensation. Following the Court of Appeal?s lead, I conclude requiring full- time work in exchange for some of the benefits normally offered only to full-time employees is ?a reasonable and bona fide requirement.? I note article 41.4 entitles the grievor to other benefits not available to employees working part-time - 4 - for reasons other than disability. To this extent, as a disabled employee, she is treated more favourably than others. Accordingly, the facts at hand do not constitute unlawful discrimination on the ground of disability. (pages 9 and 10) [9]At a hearing held after the issuance of this award, the union again sought a ruling that the grievor was entitled to all of the benefits normally available to full-time employees. The employer argued the initial award was a final and binding determination that Ms. McNally was entitled to only some of these benefits. In a decision dated September 21, 2005, I ruled in the employer?s favour: The union now contends my ruling that the grievor is protected by article 41.4 rests upon the tacit premise that she continues to have full-time status. The gist of the argument is that the grievor must have full-time status while enjoying the protection of this article, because it applies only to employees holding this status. According to this line of argument, as a full-time employee, the grievor is entitled to all of the benefits normally associated with full-time employment. This argument is substantively the same as the one initially advanced about article 41.4 and status. I rejected that submission in my initial decision because it would render meaningless the distinction accepted by the union and employer when they listed in this article some, but not all, of the benefits normally associated with full-time employment. The union is bound by my first decision and precluded from raising the same argument for a second time. (pages 3 and 4) [10]Ms. McNally then sought to ?buy back? pension coverage for the time that she no longer worked due to her disability. That request was denied by the OPSEU Pension Trust in a letter dated April 13, 2006. II [11]The instant grievance was filed on June 21, 2006. The remedy sought is a declaration that ?Ms. McNally is entitled to full pension contributions payable in respect of a full- time employee.? The union once again relies upon articles 41.4 and 42.3 of the collective agreement as well as the prohibition against discrimination based on handicap found in the Human Rights Code but the arguments advanced are new. [12]Based on the premise that the grievor is entitled to the protection of article 41.4, a premise confirmed by my initial award, the union submits she is entitled to the same - 5 - LTIP coverage as an employee working full-time hours. According to this line of argument, she is an employee ?qualified to receive LTIP benefits? within the meaning of article 42.3, even though she is not receiving them. The union contends she is therefore entitled under article 42.3 to pension contributions for the hours she is unable to work due to disability. [13]In the alternative, if the grievor has no contractual entitlement to full-time pension contributions, the union contends withholding such contributions is discrimination on the grounds of handicap. The essence of this argument is the grievor, whose injury arose out of employment, is being treated less favourably than employees with other types of disabilities, including those on LTIP who were not injured at work. Relying on the decision of the Supreme Court of Canada in Battlefords and District Co-operative Ltd. v. th Gibbs (1996), 140 D.L.R. (4) 1, the union argues differential treatment based upon type of disability constitutes illegal discrimination on the ground of handicap. III [14]Counsel cited a number of decisions where a employer objected to a grievance being heard, or a union contended a grievance should be allowed, arguing that the outcome was determined by the decision in an earlier proceeding between the same parties. Most of these cases can be divided into three basic categories: a prior decision addressing the same overarching legal question based on the very same facts; a prior decision addressing the same overarching legal question based on different but analogous facts; and a prior decision answering a different overarching legal question. IV [15]Both awards cited by the union fall in the third category of an earlier decision answering a different legal question that the one later litigated. The first is Liquor Control Board of Ontario and Ontario Liquor Board Employees Union, decision dated February 2, 2001, - 6 - GSB No. 2000-1590 (Mikus). In an earlier decision involving the same employee but a different overtime assignment, the Grievance Settlement Board (GSB) had ordered that ?the grievor be compensated for the loss of the overtime opportunity.? When the grievor made a second claim relating to another overtime assignment, the union contended the first decision barred the employer from arguing the remedy should be monetary and not in kind. The union relied on the doctrines of res judicata and issue estoppel. Vice-Chair Mikus construed the first decision as merely requiring some form of compensation without specifying whether it should be monetary or in kind. In other words, the issue decided in the first case was whether overtime had been wrongly denied, not what remedy flowed from a wrongful denial. For this reason, the first decision did not preclude the GSB from addressing the question of the proper remedy in the second case. The two cases involved distinct overarching legal questions. [16]The same was true in the other union case, Ministry of Community Safety and Correctional Services and Public Safety and Ontario Public Service Employees Union, decision dated September 29, 2005, GSB No. 2003-3764 (Johnston). This was the GSB?s second decision about whether the work of correctional officers entailed ?continuous operation of a VDT? within the meaning of the collective agreement. In the first decision, the GSB ruled the equipment operated by the employees in question was not a VDT and the grievance was dismissed. The second case arose out of different facts and the employer conceded the equipment being used was a VDT. The issue was whether employees operating it did so continuously. As the overarching legal question decided in the initial case was different than the one later posed, the ruling on the first grievance did not prevent the union from arbitrating the second one. Vice-Chair Johnston dismissed the employer?s preliminary objection which was based on res judicata and issue estoppel. V [17]Two of the arbitration awards cited by the employer belong to the second category of a prior decision addressing the same overarching question based on analogous facts. In Canada Safeway Ltd. and United Food and Commercial Workers,(2004) 128 L.A.C. - 7 - th (4) 175 (Keller) the issue was whether employees faced a conflict of interest when working for a competitor. An earlier decision by Arbitrator Rayner held that they did. Faced with analogous facts, Mr. Keller elected to follow the Rayner award, citing the doctrine of res judicata. He quoted with approval the following passage from Brown and Beatty, Canadian labour Arbitration, at 2:3220: Because the relationship of the parties to a collective agreement is a continuing one and because in different grievances the same clause may be the subject of interpretation and application on successive occasions, both the doctrine of res judicata and issue estoppel have been qualified to some extent in grievance arbitration. Generally, the view has been expressed that res judicata does not apply nor is the arbitrator bound by a prior award as to the construction of the agreement. Rather, it is said that as a matter of principle the prior award should be followed unless the arbitrator has a clear conviction that the earlier interpretation is wrong. Moreover, in that event it has been suggested by one arbitrator that a previous finding on the same issue imposes an obligation on the arbitrator who wishes to depart from it, to analyze clearly the shortcomings of the previous award and lay a solid foundation for the departure ... And this approach has been followed whether it is the same language in the same agreement or in subsequent agreements where it has remained unchanged. (emphasis added.) Applying the prevailing approach described by Brown and Beatty, Mr Keller wrote: In the result, therefore, although there may be some factual differences between the matter before me and Mr. Rayner the essential facts are not different and I am unable to formulate a clear conviction that the conclusions reached by Mr. Rayner were wrong. (para. 39) [18]The GSB has followed a slightly different tack in relation to the second category of cases. Union counsel cited Ministry of Transportation and Communication and Ontario Public Service Employees Union, dated February 8, 1982, GSB No. 1981-843 (Delisle). The GSB had previously ruled an employee named Stewart should be classified as a Draftsman II. Another employee, named Battens, then claimed his work should be classified in the same way. The employer conceded both individuals had the same duties but contended the earlier decision had been made in error. Vice Chair Delisle allowed the second grievance, based upon the doctrine of res judicata, without considering whether the first decision was manifestly wrong. [19]I would be remiss to overlook a more recent decision, by Owen Shime, then Chair of the GSB, adopting a more nuanced approach. In Toronto Area Transit Authority and Amalgamated Transit Union, dated May 3, 1988, GSB No. 1987-1276, Mr. Shime wrote: In the private sector ad hoc boards of arbitration have a separate and distinct capacity to decide each case on its own merits. Recognizing that individual, but different, decisions - 8 - on the same point or issue may create confusion, arbitrators have balanced the interests of individual decision making with predictability by generally adopting a policy that they will not depart from earlier decisions unless such decisions are manifestly in error. But the Grievance Settlement Board is one entity?it is not a series of separately constituted boards of arbitration. ? Thus each decision of a panel becomes a decision of the Board and in our opinion the standard of manifest error is not appropriate for the Grievance Settlement Board. The [Crown Employees Collective Bargaining] Act does not give one panel the right to over-rule another panel or sit on appeal from the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load. We are mindful, however, that there is no provision for appeal and there are limits to judicial review. While it is our view that the ?manifest error? theory is too lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might be reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances. (pages 7 to 9) VI [20]The remaining two awards cited by the employer fall in the first category of an earlier decision involving the same overarching question of law and the same facts. In Pharma th Plus Drugmarts Ltd. and United Food and Commercial Workers (1991), 20 L.A.C. (4) 251 (Barton), the grievor?s complaint was that the employer had ceased a long-standing practice of paying her more that the applicable hourly rate specified in the collective agreement. In keeping with this practice, for the first pay period after an annual increase came into effect, the grievor was paid $9.38 per hour rather than the contract rate of $8.85. Thereafter she was paid at the contractual rate. She grieved the reduction and Arbitrator Stanley ruled her rate should be red circled at $9.38, but he rejected the union?s request for a declaration that she would be entitled to the same differential over the contractual rate after the next annual general increase was applied. The second grievance was filed after that increase came into effect and the employer continued to pay the grievor $9.38 hourly. Applying the doctrine of res judicata, Arbitrator Barton refused to entertain the second grievance because Mr. Stanley had already decided she had no claim to any further increase. - 9 - [21]The other award falling in the first category is Telus Communications Inc. and th Telecommunications Workers Union (2006), 158 L.A.C. (4) 67 (McConchie). During negotiations for a new collective agreement, the employer served lockout notice and then reduced sick benefits while allowing employees to continue to work. The union initially filed a complaint with the Canada Industrial Relations Board (CIRB) contending the lockout and ensuing reduction in benefits were unlawful because the employer had failed to bargain in good faith and had committed other unfair labour practices. This complaint was dismissed. The union subsequently filed a grievance alleging the reduction in paid sick leave contravened a section of the Canada Labour Code not mentioned in the proceedings before the CIRB. Applying the doctrine of res judicata, Arbitrator McConchie declined to hear the grievance, even though it was based on a section not considered by the CIRB. He wrote: There are two aspects to the doctrine. First, it bars a party from relitigating an issue which has already been decided in a previous proceeding. Secondly, it also prevents a party from litigating a matter which it ought to have brought up at an earlier proceeding. The parties here agree that the issue before me revolves around the second, not the first, of the two aspects. The CIRB did not receive the Union's argument under s. 94(3)(d.1) and so it has not been previously decided. The question is whether the Union was bound to bring the matter up in those earlier proceedings. Adjudicators express in somewhat different ways the circumstances in which a party may find itself bound to raise a matter. I will italicize the key phrases. In the paradigm case of Henderson v. Henderson [1843] 3 Hare 100, 67 E.R. 313, the court held that the doctrine applied to bar "every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time". The British Columbia Court of Appeal described the obligation as being to "bring forward their entire cases and avoid carving up in sections a controversy that should be resolved in all aspects": Lim at para. 4. In Duhaime, as has been seen, the British Columbia Labour Relations Board barred the complainant's claim upon a finding that all of the matters raised by the complainant (with one exception not relevant here) "arise out of the same set of facts and are inextricably linked" and "[a]ll occurred before the First Complaint was adjudicated" ? The Union's legal position under s. 94(3)(d.1) properly belonged to the subject of the litigation, which was the Employer lockout and alteration of terms. It arose out of the same facts as the arguments under s. 89 and the other unfair labour practice arguments raised as an alternative position by the Union at the hearing. In substance, the Union did not bring forward its whole case. It was bound to do so. I must also conclude that the policy reasons behind the application of the doctrine ofres judicata are clearly invoked in this proceeding. ? In the case at hand, the parties should have had the expectation that the CIRB would clarify the legal relationship and put an end to the controversy, namely, whether and to what extent the Employer was entitled to lockout and/or change terms and conditions of employment. (paras 38 to 41, 48 and 49) - 10 - The overarching legal question in both proceedings was whether the reduction in benefits was proper. The CIRB had ruled it was. Arbitrator McConchie declined to hear a new argument advanced in the hope of obtaining a different answer to the same question. VII [22]In addition to the arbitral awards reviewed above, the employer cited court decisions dealing with res judicata and issue estoppel. In my view, two of those cases are particularly pertinent for present purposes. Both belong to the first category of an earlier decision addressing the same overarching legal question based on same factual scenario. [23]The first is Maynard v. Maynard, [1951] S.C.R. 346 involving two family law proceedings. In the course of a divorce action, the wife agreed to accept $1,200 in full satisfaction of her claim for maintenance and alimony; that agreement was endorsed by the court. She subsequently commenced another action seeking additional payments, alleging that the earlier agreement had been induced by a fraudulent misrepresentation by the husband. A motion in the original divorce action was launched while judgement was pending on the fraud allegation, but the motion was not heard until that allegation had been rejected. The motion claimed additional maintenance and alimony, attempting to avoid the original agreement on grounds other than fraud. The issue before the Supreme Court was whether the motion was barred by judgement in the fraud action. Addressing the doctrine of res judicata, the Supreme Court cited with approval the following passage from the judgment of the Judicial Committee in Hoystead v. Commissioner of Taxation, [1926] A.C. 155: Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case, or new versions ? of the construction of documents or the weight of the certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. (emphasis added) Holding the motion was barred by judgement in the fraud action, Cartwright J. wrote: The issue now before us was, I think, expressly raised in the pleadings of the earlier proceeding and decided ?The appellant [wife] has submitted the same question as is - 11 - now before us (although perhaps not the same arguments) to the decision of a court of competent jurisdiction and cannot now relitigate the matter. (emphasis added) The overarching legal question in both proceedings was the same?i.e. whether the wife was entitled to more maintenance and alimony than specified in the agreement. The Supreme Court ruled that the earlier judgement prevented her from bringing the motion, even though arguments made in support of the latter proceeding had not been considered in the former. [24]The employer also relies upon Tsaousis v. Baetz [1998] O.J. No. 3516(C.A.) where two actions were brought claiming compensation for a young child injured in a motor vehicle accident. Approximately two years after the accident, the child?s mother agreed to accept a payment of $5,420 in full satisfaction of her claim and the agreement was approved by éÕÔÊØÇÔÙØÏÚØ the court based upon medical evidence that the child was ?normal.? ÍËÎÇØÙÉÎÛØ×ÜÈÑÉÄÜÏÙ the mother launched a second actionclaiming $2.2 million as compensation for ongoing medical and developmental problems. Noting the medical evidence presented in the later action would have available at the time of the first, if due diligence had been exercised, the Court of Appeal concluded the second action was barred by the first. Speaking for the Court, Doherty J.A. wrote: The importance attached to finality is reflected in the doctrine of res judicata. That doctrine prohibits the re-litigation of matters that have been decided and requires that parties put forward their entire case in a single action. Litigation by instalment is not tolerated ? Finality is so highly valued that it can be given priority over the justice of an individual case even where fundamental liberty interests and other constitutional values are involved .. That is not to say that finality interests always win out over other interests once final judgment is signed and entered. Sometimes the rigor of the res judicata doctrine will be relaxed ? The limitations on the res judicata doctrine and the power to set aside previous judgments are, however, exceptions to the general rule that final judgments mark the end of litigation. Those exceptions recognize that despite the value placed on finality, there will be situations in which other legitimate interests clearly outweigh finality concerns. The power to set aside a final judgment obtained by fraud is the most obvious example. As important as finality is, it must give way when the preservation of the very integrity of the judgment process is at stake. (para. 18 and 19; emphasis added) In short, the Court of Appeal ruled that the need for finality precludes relitigation even when personal liberty and constitutional rights are at stake, unless there are exceptional circumstances such as fraud. - 12 - VIII [25]How does the case law reviewed above apply to the employer?s preliminary objection that the instant grievance is barred by my earlier decisions? [26]The case at hand belongs to the first category of an earlier decision addressing the same overarching legal question based on the same facts. The initial grievances challenged the reduction in benefits, including pension, incurred by the grievor as a result of working part-time. I ruled that she was entitled to continue receiving some benefits without diminution, but that pension was excluded from the list of benefits protected in this fashion. In the most recent grievance, the union seeks to advance new arguments in relation to the same overarching legal question about the grievor?s pension entitlement. In the cases reviewed above, arbitrators and courts have held relitigation should not be allowed in this context. [27]The union emphasized the importance of pension to the grievor?s financial security and the quasi-constitutional nature of human rights legislation. The cases reviewed above lead me to conclude these factors do not outweigh the importance of finality in the determination of whether relitigation is warranted. The wife?s financial security was at stake in Maynard v. Maynard as was the child?s in Tsaousis v. Baetz, but relitigation was not permitted in either case. In the latter case, the Court of Appeal stated that finality trumps even constitutional rights when the same claim is being advanced for a second time. [28]The preliminary objection is sustained and the grievance is dismissed. th Dated at Toronto this 25 day of September 2009. Richard Brown, Vice-Chair