Loading...
HomeMy WebLinkAboutUnion/Adamo Group 22-04-04 IN THE MATTER OF AN ARBITRATION BETWEEN: WINDSOR REGIONAL HOSPITAL (the “Hospital” or “WRH”) -and- OPSEU LOCAL 101 (the “Union”) Re: Grievances #R2021-0101-0014 & 2021-0101-0028 Registered Pharmacy Technician wage rate grievances (Adamo Group) SOLE ARBITRATOR: Kelly Waddingham APPEARANCES: For the Employer: Jodi Gallagher Healy- Hicks Morley Hamilton Stewart, Storie Adam Bulkiewcz- Director, Labour Relations For the Union: Lesley Gilchrist - OPSEU Grievance Officer Susan Hamelin - President, Local 101 Michelle Mulligan - Grievor Video Conference Hearing held on March 8, 2022 2 AWARD Introduction 1. This proceeding concerns policy and group grievances filed by the Ontario Public Service Employees Union, Local 101 (“OPSEU” or the “Union”) in March and June 2021 asserting that in January 2015, Windsor Regional Hospital (“WRH” or the “Hospital”) created a new classification, and failed to determine and pay an appropriate wage rate for the classification. This decision deals with a preliminary objection by the Hospital that the grievances are untimely, having been filed beyond the time limits prescribed by the Collective Agreement. OPSEU acknowledges that the grievances are untimely, but asks me to exercise my discretion under subsection 48(16) of the Labour Relations Act, 1995 (S.O. 1995, c. 1, Sched. A) to relieve against time limit. 2. The hearing proceeded on the basis of a Statement of Agreed Facts, which is reproduced below. The parties also filed a Joint Book of Documents. No viva voce evidence was called. The parties are commended for their efforts and cooperation in ensuring that this matter was heard expeditiously. Agreed Statement of Facts and Documents 1. This proceeding concerns OPSEU’s Policy and Group grievances filed on March 23, 2021 and June 7, 2021, respectively, asserting that WRH created a new classification as of January 1, 2015, which is the deadline by which WRH required all Pharmacy Technicians to be registered and in good standing with the Ontario College of Pharmacists (the “OCP”) if they wished to continue working as a Pharmacy Technician at WRH. 2. The parties have agreed to stipulate the following facts for the purposes of WRH’s preliminary objection that OPSEU’s grievances are untimely. The parties may supplement but may not contradict this Agreed Statement of Facts. 3. The parties each reserve the right to make arguments about the relevance and weight provided to any of the facts set out below, or the attached documents. 3 Registration Requirement for Pharmacy Technicians 4. Historically, Pharmacist Technicians were not required to be registered with the OCP. Registration was optional and “Pharmacy Technician” was a title often used interchangeably with “Pharmacy Assistant.” 5. The Health Systems Improvement Act, 2007 (Bill 171) passed by the Ontario Legislature in 2007 amended (among other things) the Pharmacy Act to state that the title of “pharmacy technician” could only legally be used by pharmacy technicians registered as members with the OCP. This change came into force on December 3, 2010. 6. Regulations were created under the Pharmacy Act setting out a series of steps (i.e., education program, examinations and registration) to enable those who were already working as pharmacy technicians to become registered with the OCP. The steps involved in registration and the timelines for those steps are described in “Pharmacy Technician Regulation filed as Exhibit 1, which WRH distributed to OPSEU and pharmacy technicians in November 2009. 7. As set out in Exhibit 1, WRH decided and communicated to OPSEU and affected employees in November 2009 that as of January 1, 2015, WRH would only employ Registered Pharmacy Technicians, meaning that all Pharmacy Technicians working at WRH were required to become registered with the OCP by that date or they would not be able to continue working at WRH as pharmacy technicians or, unregulated as “pharmacy assistants”. 8. Pharmacy technicians working at WRH became registered with the OCP between 2011 and 2015, with many registration dates in 2013 and 2014. Registered Pharmacy Technicians are required to pay membership dues to the OCP and carry liability insurance as regulated health professionals. Re-Alignment and the First Collective Agreement for the Amalgamated Bargaining Unit 9. As of October 1, 2013, a realignment of services occurred between WRH and Hotel-Dieu Grace Hospital that (among other things) resulted in the creation of a newly configured allied health services bargaining unit at WRH that had previously been comprised of four bargaining units at HDGH, two bargaining units at WRH and certain non- 4 unionized employees. OPSEU became the bargaining agent for the newly configured allied health services bargaining unit, which included pharmacy technicians. 10. An excerpt of the WRH and OPSEU collective agreement dated April 1, 2012 to March 31, 2014 filed as Exhibit 2. Article 25.02 set out the “new classification” language as follows: In the event that a new occupational classification which is covered by the terms of the collective agreement is decided upon by the Employer as necessary to its operation, then the work, the job title and the wage rates shall first be determined and acted upon by the Employer for the purpose of assigning an employee and proceeding with the task to be then performed. Thereafter the Employer shall immediately notify the Union by registered mail of the action taken. If no formal protest is lodged in writing to the Employer by the Union within one month of the date of such notice having been received, the new occupational classification shall be deemed to have become a modification of Schedule "A" or Schedule "B" of this Agreement. In the event a formal protest is made by the Union, the parties shall arrange for a meeting for the purpose of endeavouring to resolve any difference. If such difference between the parties is not resolved by this means, then the Employer's decision shall stand for the purpose of continuing to have the work performed and the dispute shall be submitted to the Grievance Procedure at Step 3. 11. This language has remained unchanged to today’s agreement except was renumbered to Article 22.02 in the April 1, 2014 to March 31, 2016 and subsequent collective agreements. 12. In May 2014, WRH and OPSEU reached an Implementation Agreement (filed as Exhibit 3) relating to the terms and conditions of bargaining unit employees pending negotiation of a new collective agreement for the reconfigured bargaining unit. Under paragraph 36 of the Implementation Agreement, Article 10 of the OPSEU Local 142 Agreement applied to grievances that arose in the reconfigured bargaining unit following the effective date of the Implementation Agreement, including the following provisions: 5 a. Article 10.04 stated that Policy Grievances “shall be originated at Step No. 2 within fourteen (14) calendar days following the circumstances giving rise to the grievance”; b. Article 10.05 stated that Group Grievances may be filed “within fourteen (14) calendar days after the circumstances giving rise to the grievance have occurred”; c. Article 10.15 stated that “the time limits set out in this Article are mandatory and failure to comply strictly with such time limits, except by the written agreement of the parties, shall result in the grievance being deemed to have been abandoned;” and d. Article 10.12 stated that an arbitration board “shall not be authorized to make any decision inconsistent with the provisions of this Agreement, nor to alter, modify, add to or amend any part of this Agreement. 13. Article 25.02 of the WRH/OPSEU 2012-2014 collective agreement remained in effect and was not amended by the Implementation Agreement. 14. The collective agreement provisions referenced in paragraphs 12 and 13 remained in effect by operation of law until WRH and OPSEU negotiated/were awarded a first collective agreement for the reconfigured bargaining unit. This means that the paragraph 12 and 13 provisions were in effect when the pharmacy technician registration requirement deadline of January 1, 2015 occurred. 15. WRH’s view was that it did not create a new classification as contemplated by Article 25.02, above, so did not advise OPSEU by registered mail of any action taken. OPSEU did not lodge a “formal protest” within 1 month (or at any time until the filing of the grievances, referenced below) of the January 1, 2015 registration deadline as referenced in Article 25.02. 16. The first collective agreement for the newly configured bargaining unit was awarded by an interest arbitration board chaired by Jasbir Parmar in an award dated February 5, 2017 (the “Parmar Award, filed as Exhibit 4). The collective agreement term was April 1, 2014 to March 31, 2016. 6 17. The Parmar Award included a wage grid for a Registered Pharmacy Technician classification and implemented a Letter of Understanding regarding a “Tech Check Program”, which was a pre-existing responsibility allowance of $1.25 per hour worked paid to those trained and certified to conduct an independent verification of another pharmacy technician’s preparation of a medication. WRH had paid this allowance on top of base wage rates while historically, HDGH had included it in the hourly wage rate. 18. Excerpts from the parties’ April 1, 2014 to March 31, 2016 Collective Agreement filed as Exhibit 5. Article 25.02 of the 2012-2014 collective agreement became Article 22.02 of the 2014-2016 collective agreement. Articles 10.04, 10.05 10.15 and 10.12 of the Implementation Agreement quoted above became Articles 8.04, 8.05, 8.15 and 8.12 of the 2014-2016 Agreement. OPSEU Central Agreement, the Gee Awards and the 2016- 2019 Collective Agreement 19. Many OPSEU local bargaining units in hospitals in Ontario are covered under a single Collective Agreement, known as the “OPSEU Central Agreement” that is bargained centrally between OPSEU and the Ontario Hospital Association (“OHA”). The OHA bargains with OPSEU on behalf of those hospitals that have opted to participate in central bargaining. WRH does not participate in central OPSEU bargaining and is not bound to the OPSEU Central Agreement. WRH bargains a collective agreement directly with OPSEU. 20. Between 2012 and 2017, many grievances were filed at hospitals that participate in central bargaining alleging that the OCP registration requirement for Pharmacy Technicians constituted a new or substantively changed position, and that their wages were no longer appropriate. The parties to the OPSEU Central Agreement agreed to have these grievances heard by Arbitrator Diane Gee under Article 25.01(b) of the OPSEU Central Agreement. 21. In 2016-8 bargaining between WRH and OPSEU Local 101, OPSEU proposed that WRH agree to adopt the outcome of the Registered Pharmacy Technician OPSEU Central grievance process before Arbitrator Gee. 22. OPSEU Local 101’s President recalls Sharon Morris, then WRH’s Director of Human Resources and Labour Relations, stating that WRH was considering participating in central 7 bargaining through the OHA for this OPSEU bargaining unit and that the Central Agreement set a standard that many hospitals who did not participate in central bargaining would adopt. WRH has been unable to confirm this information because Ms. Morris ceased working in May 2020 due to a serious illness and passed away in May 2021. 23. Based on what she recalls as Ms. Morris’ comments, and information from someone else on OPSEU Local 101’s bargaining team who recalls a having similar hallway discussion with Ms. Morris during bargaining, the OPSEU Local 101 President subjectively believed there was a reasonable possibility that WRH would adopt the outcome of the Gee arbitration process in the next round of bargaining. OPSEU is not asserting that any promise or representation was made by Ms. Morris/WRH to this effect. 24. Based on its belief that WRH would voluntarily follow the outcome of the Gee arbitration process, OPSEU Local 101 withdrew its bargaining proposal relating to the Registered Pharmacy Technician wage rate and did not file any grievance on the issue. 25. The language of Articles 22.02, 8.04, 8.05, 8.15 and 8.12 remained the same in the parties’ April 1, 2016 to March 31, 2019 Collective Agreement (filed as Exhibit 6). 26. On July 30, 2018, Arbitrator Diane Gee issued a first award on the threshold issue of whether the registration and scope of practice of Pharmacy Technicians constituted a “new or substantially changed position” under the OPSEU Central Agreement language and found that it did. Filed as Exhibit 7 is a copy of this decision. 27. In September 2018, OPSEU and Hotel Dieu Grace Healthcare entered into a Letter of Understanding re Registered Pharmacy Technicians filed as Exhibit 8. HDGH is a separate employer from WRH. HDGH does not participate in OPSEU Central bargaining either. The OPSEU Local 101 President at WRH subjectively believed that the HDGH/OPSEU LOU made it more likely that WRH would adopt the outcome of the Gee arbitration process under the OPSEU Central Agreement. 28. In 2019/2020, WRH and OPSEU negotiated a renewal collective agreement. Based on the conversations at the prior round of bargaining described above, OPSEU Local 101 subjectively believed that WRH would voluntarily include a substantial raise for Pharmacy Technicians that reflected the 8 Gee arbitration outcome. OPSEU’s monetary proposals included a proposal that WRH agree to implement the outcome of the Gee arbitration process. 29. Bill 124 (Protecting a Sustainable Public Sector for Future Generations Act, 2019) received Royal Assent in November 2019 and imposed wage restraints that limited wage increases for the WRH/OPSEU bargaining unit for a 3 year moderation period of April 1, 2019 to March 31, 2022. 30. On January 6, 2020, Arbitrator Diane Gee issued a second award, implementing a 6% wage increase for Pharmacy Technicians under the OPSEU Central Agreement for hospitals that participated in OPSEU Central bargaining. Filed as Exhibit 9, is a copy of this decision. 31. On March 23, 2021, OPSEU Local 101 filed a policy grievance with WRH that requested, among other things, that “the wage rate for Registered Pharmacy Technicians should be determined appropriately…” Filed as Exhibit 10 is a copy of the policy grievance. 32. On June 7, 2021, OPSEU filed a group grievance on behalf of the Adamo group, which requested, among other things, that “the wage rate for Registered Pharmacy Technicians should be determined appropriately…” This grievance was received by WRH on June 30, 2021. Filed as Exhibit 11 is a copy of the grievance. 33. On August 25, 2021, an Arbitration Panel chaired by Paula Knopf issued an award regarding WRH/OPSEU Local 101’s April 1, 2019 to March 31, 2022 collective agreement. No wage adjustment was awarded for Pharmacy Technicians. 34. There were no amendments to the language of Articles 8.04, 8.05, 8.11, 8.15 and 22.02 in the parties’ April 1, 2019 to March 31, 2022 agreement. Argument The Hospital’s Submissions 3. The Hospital submits that this is not an appropriate case for me to extend the time limit for the filing of the grievances. It maintains that the Union has not established reasonable grounds for an extension, and that it would suffer substantial prejudice if an extension was granted. 9 4. The Hospital points out that the grievances are based on the Union’s view that WRH created a new classification on January 1, 2015 – the date on which it required all of its Pharmacy Technicians to be registered with the Ontario College of Pharmacists – and that it failed to notify the Union that it had done so as required by Article 22.02 (formerly 25.02) of the Collective Agreement. On OPSEU’s “theory of the case”, the Hospital denies that it created a new classification within the meaning of Article 22.02 when it required all Pharmacy Technicians to be registered. However, WRH submits that the issue of whether it did or did not create a new classification is not before me. 5. Nonetheless, the Hospital asserts, the Union’s reliance upon Article 22.02 bears on my authority to provide the relief sought by the Union. First, the Hospital says, it establishes the point at which the time limit for the grievances began to run. The Hospital maintains that in view of Article 22.02 the event on which the grievances are based (the alleged creation of a new classification) took place on January 1, 2015 (although it points out that it could be argued that “circumstances giving rise to the grievance(s)” arose earlier than that). Accordingly, WRH contends, the process that would establish the “condition precedent” for the grievances (a formal protest by the Union and a meeting of the parties to discuss the new classification) began on January 1, 2015. 6. The Hospital asserts that as the Union made no formal protest to the “new classification” within the 30-day time limit prescribed by Article 22.02, no meeting between the Union and the Hospital took place. Accordingly, it says, the condition precedent for submitting the “dispute” to Step 3 of the grievance procedure was not met. The Hospital maintains that the condition precedent is not part of the grievance procedure. It further points out that, by virtue of Article 8.12 (formerly Article 10.12), I am not authorized to “alter, modify, add to or amend” any part of the Collective Agreement. Thus, the Hospital contends, I have no authority to relieve against the absence of the condition precedent necessary for the grievance in the first place. Furthermore, the Hospital asserts, subsection 48(16) does not authorize me to extend the time limit in a process that is outside of the grievance procedure. The Hospital contends that the first “formal protest” made by the Union under Article 22.02 was the policy grievance of March 2021. As the protest was made well outside the 30-day window provided by Article 22.02, it is untimely and ought to be dismissed. 7. WRH further submits that if OPSEU’s position is that the Hospital breached the Collective Agreement by failing to give the Union notice that it had created a new classification, it was incumbent upon the Union 10 to grieve that event within the time limits for grievances prescribed by Articles 8.04 and 8.05 (formerly Articles 10.04 and 10.05). The Hospital contends that as the dispute between OPSEU and WRH crystalized on January 1, 2015, the time limits for filing grievances ended January 15, 2015. WRH points out that, pursuant to Article 8.15 of the Collective Agreement (formerly Article 10.15), the time limits under Article 8 are mandatory, and that failure to take an action within the prescribed time limit will result in the grievance being deemed abandoned. The Hospital points out, further, that there has been no written agreement between the parties to waive the time limits set out in Articles 8.04 and 8.05. 8. The Hospital’s position on the request for an extension of the time limits is based on three propositions, all of which, the Hospital maintains, are supported by the arbitral jurisprudence. The first is that time limits relating to grievances and grievance proceedings are important and should be accorded deference, especially where the collective agreement specifies that they are mandatory and imposes consequences for a party’s failure to adhere to them (citing Re Victoria Hospital Corp. and OPSEU, Local 106 (unreported), December 4, 1986, Brown, McManus & McPhail, and Re Algoma Steel Inc. and USWA, Local 2251, 2006 CarswellOnt 10834). The second is that the party requesting the extension must provide a reasonable and compelling explanation for its failure to act within the prescribed time limit. The third proposition is that the instant request should be determined on the basis that grievances pertain to a single event, and thus do not concern continuing breaches of the Collective Agreement. 9. The Hospital directs me to the factors typically relied upon by arbitrators in determining whether reasonable grounds for an extension have been provided (see: Hamilton (City) v. C.U.P.E., Local 5167, 2010 CarswellOnt 11485, at paras. 11-19, and Re Greater Niagara Hospital and ONA, (1981) 1 LAC (3d) 1 at paras. 12-19). Consideration of these factors, the Hospital maintains, militates against granting an extension in this case. The Hospital points out that the time limits the Union seeks relief against here pertain to the filing of the grievances. The Union filed the instant grievances more than six years after the lapse of those time limits. WRH contends that given the importance of the issue to the OPSEU, it was reasonable to expect that the Union would have raised the matter within the time limits (or, at least, much earlier than it did). The Hospital points out that since January 2015, the parties have engaged in three rounds of collective bargaining. WRH further contends that the Union’s reason for its delay in filing a grievance – its belief that WRH would ultimately adopt a wage rate for Registered Pharmacy Technicians determined in an arbitration under the OPSEU/OHA 11 Collective Agreement (the “Central Agreement”) – is not a compelling or reasonable explanation for the delay, and should not be permitted to form the basis for an extension of the time limit under subsection 48(16). The Hospital asserts that in the circumstances, it was reasonable for it to assume that a grievance concerning the matter was not going to be filed. Accordingly, the Hospital insists, OPSEU has not established reasonable grounds for an extension of the time limits for the grievances. 10. WRH maintains that permitting the extension sought here would cause it substantial prejudice. The Hospital submits that prejudice is inherent in the length of the delay, as it can be assumed that with the passage of up to six years, memories of important events or conversations will have faded. More significantly, the Hospital points out, a key witness (WRH Director of Human Resources and Labour Relations, Sharon Morris) passed away in May 2021. Consequently, WRH says, much of the “institutional knowledge” upon which it would rely has been lost. 11. WRH contends that these are not “continuing grievances”, such that different considerations regarding the time limits apply. The grievances, the Hospital submits, pertain to a single event – the imposition of a requirement that Pharmacy Technicians become registered with the College of Pharmacists. That requirement was communicated to the Union in November 2009, with notice that the deadline for registration would be January 1, 2015. Hence, the event giving rise to the grievances took place on January 1, 2015 or, arguably, earlier. The Hospital allows that there have been “continuing consequences” arising out of that event, but asserts that there was no “continuing breach” of any collective agreement obligation. The Hospital has directed me to several authorities that explain the distinction between the two concepts (see: U.G.C.W. v. Dominion Glass Co., [1973] O.J. No. 2320 (CA), at para. 8; Visic v. Ontario Human Rights Commission, [2008] O.J. No. 1768 (Div. Ct.), at paras. 44-45; Re British Columbia v. B.C.N.U. (1982) 5 L.A.C. (3d) 404, para. 34). OPSEU’s Submissions 12. The Union’s submissions start from the observation that the dispute between the parties is not about the facts of the case but, rather, is about the interpretation to be given to those facts. The Union contends that the grievances are ultimately about the Hospital’s failure to recognize that by requiring Pharmacy Technicians to be registered, it was effectively creating a new classification. By failing to recognize that 12 it was doing so, OPSEU asserts, the Hospital denied the Union the opportunity to respond to the event by way of the process provided by Article 22.02. 13. OPSEU acknowledges that there were earlier opportunities to grieve the Hospital’s action. However, it maintains that the issue of the characterisation of the ”Pharmacy Technician” position and the appropriate remuneration for it has never truly been “sleeping”. For these reasons, OPSEU submits, the circumstances of the grievances are such that an extension of time for filing the grievances is warranted. 14. The Union acknowledges that the delay in filing the grievances is long. However, it submits that some of the delay can be attributed to the Union’s expectation that WRH would ultimately adopt the outcome of the OPSEU-OHA grievances, and increase the wages of its Pharmacy Technicians accordingly. While it did not have a “binding promise” from WRH in that regard, it believed that the Hospital would fall into line with the Hospitals that are party to the Central Agreement, and that a grievance would not be necessary. Neither the Hospital nor the Union, OPSEU says, could have known that Bill 124 was coming. But for its passage, the Union contends, the Hospital likely would have provided the 6% wage increase. OPSEU insists that given the history of the bargaining relationship between the parties, its belief was not unreasonable. Accordingly, it says, its delay in filing the grievances is not unreasonable. The Union directs me to St. Clair Catholic District School Board v. O.E.C.T.A., 2011 CanLII 5487 (ON LA) as an example of a case in which the arbitrator relieved against the time limit for a grievance in a circumstance where the delay was the result of a belief honestly held by the union (i.e., the belief that the employer did not object to the grievance having been brought as a policy grievance rather than as an individual grievance. See para. 58). 15. OPSEU contends that the delay here is less significant than it might be in other factual circumstances. In the present case, the Union says, the issue to be dealt with is not one that “calcified” or “fossilized” at some point in the past. OPSEU maintains that the matter of the Pharmacy Technicians’ remuneration has remained a live issue – the facts and details of which the parties are well aware. The Hospital, OPSEU contends, could never have been under the belief that the Union was content with the status quo. The Union insists that it did not lull the Hospital into believing that it was no longer interested in the matter. The Hospital, the Union says, is still able to respond to the issue. OPSEU submits that any “inequities” that may have arisen as a result of its 13 failure to bring the grievances sooner can be addressed at the remedial stage of this proceeding. 16. The Union agrees that this is not a “continuing grievance”, but suggests that the continuing effect of the Hospital’s failure to adjust the wage rate for Pharmacy Technicians provides a compelling reason for me to exercise my discretion under subsection 48(16). The Union also agrees that the Collective Agreement’s grievance time limits are important, and insists that it is its intention to abide by them. However, it says, this is an “extraordinary” situation that calls for an extension of the time limits pursuant to subsection 48(16). OPSEU asserts that the instant grievances are far more important than a simple “pay grid” grievance, as the effect of the employer’s action has been to impose additional requirements on a particular group of employees, and then pay the employees less than the “industry standard” for workers subject to those requirements. The grievors, the union says, have a “powerful interest” in ensuring that the industry standard applies to them. 17. OPSEU acknowledges that the factors considered in Greater Niagara Hospital, supra, should be considered in the case of this request. However, it contends that there is no “hierarchy of factors”, and that the reason for the delay is not the paramount consideration (citing Re Becker Milk Company Ltd. and Teamsters, Local 647 (1978), 19 L.A.C. (3d) 217, at pp. 220-221, quoted in St. Clair Catholic District School Board, supra, at para. 53). The Union submits that all of the factors must be assessed together as an “integrated group”. Accordingly, the Union says, “reasonable grounds” in this case ought not to be based solely on the reasonableness of its justification for its delay in bringing the grievances. 18. The Union maintains that “fault” is not a helpful consideration in this case. Fault, it says, implies that a party was careless or neglectful. No one was neglectful or careless here, the Union says. OPSEU maintains that it was “optimistic” about the likelihood that WRH would adopt the outcome of the Central Agreement arbitration. The Union insists that it was not negligent in failing to bring a grievance, and that it has not acted in bad faith. It did not, it says, “flagrantly disregard” its obligation under the Collective Agreement to bring grievances in a timely manner. OPSEU maintains that before it brought the grievances, it was attempting to work with the Hospital to achieve parity for WRH Pharmacy Technicians. The Union contends that the circumstances in which these grievances originated were shaped by events that were beyond the control of the parties. Thus, the Union submits, consideration of “fault” should not weigh against granting an extension. 14 The Union points out that purpose of subsection 48(16) is to relieve against technical bars that would prevent a grievance from proceeding. It is not intended, OPSEU says, to punish a union for being “optimistic” or “procedurally naïve” (citing Re Becker Milk Company Ltd., supra, at p. 220-221). 19. The Union asks me to bear in mind the burden and costs placed upon Pharmacy Technicians by the registration re quirement. It points out that the process for obtaining OCP registration is time -consuming, gruelling and stressful. OPSEU maintains that the process effectively required the Hospital’s existing Pharmacy Technicians to undertake a two-year college program while working full-time, under the threat of losing their employment should they fail to complete the program successfully. All of this effort and hardship, the Union says, was for the benefit of the Hospital. The Union points out that after the requirement came into effect, Pharmacy Technicians were required to pay OCP dues, to pay for liability insurance, and to perform work within the full scope of practice (as determined by the OCP). It contends that in spite of the new requirements, the Hospital regarded their circumstances as unchanged. Pharmacy Technicians, the Union asserts, were essentially “running to stay in one spot”. The Union insists that the issue in this case is more significant than simply obtaining a pay raise. Pharmacy Technicians at WRH have suffered indignity and humiliation at being left behind their peers at other hospitals. Their “extraordinary” circumstances, the Union submits, constitute reasonable grounds for extension of the time limits. 20. OPSEU acknowledges that the Hospital will suffer some prejudice if the time limit is extended, but submits that the prejudice will amount to no more than “inconvenience”. The Hospital, the Union says, will still be capable of explaining why it made the decision it made with respect to the Pharmacy Technicians, how it evaluated the qualifications of existing and new Technicians, and why it did not provide notice under Article 22.02 that it had created a new position. The Union maintains that, despite Ms. Morris’s passing, the Hospital still has access to evidence (job descriptions, assessments, and the oral evidence of managers) that would establish why and how it determined that the position stayed the same. Ms. Morris, the Union says, is not the Hospital’s only source of “institutional knowledge”. As the Hospital remains “robustly certain” about its decision-making process, the prejudice it may suffer will not be substantial, OPSEU insists. OPSEU contends that the Hospital and the Union have, in fact, benefitted from the delay in the filing of the grievances. The parties, the Union says, have benefitted from learning what effect the alteration to the Pharmacy 15 Technician position has had, and what “industry standard” has attached to it. OPSEU submits that in the circumstances, the interests of the parties’ labour relations would not be served by punishing the Union for not filing the grievances sooner. The Hospital’s Reply 21. The Hospital asserts that the only “extraordinary” feature of this request is length of the delay in the filing of the grievances. It contends that the events relied upon by OPSEU to explain the delay do not amount to extraordinary circumstances that would justify an extension. WRH maintains that as of January 2015, the Union had a choice regarding the changes to the Pharmacy Technician position. It could attempt to persuade WRH – through “discussion or bargaining” – to adopt new wage rates for Pharmacy Technicians, or it could file a grievance for the purpose of having the issue determined by an arbitrator. OPSEU, the Hospital points out, chose the former. The Hospital maintains that the Union’s belief that WRH would adopt the Central Agreement outcome – even if reasonable – does not provide a compelling explanation for its failure to file a grievance on the issue. Without a grievance, the Hospital says, the Union was left to “ask and persuade” WRH to come around to its position. 22. The Hospital points out that Bill 124 was not enacted until November 2019. Its enactment, the Hospital says, does nothing to explain the delay relating to the period between January 2015 and November 2019. The Hospital further asserts that it did not “rob” the Union of an opportunity to respond to the registration requirement. It was o pen to the Union, the Hospital maintains, to file a grievance after the requirement came into effect. WRH points out that once a grievance was filed, OPSEU could have asked that it be held in abeyance. The proposition that it was appropriate to wait to file a grievance – because of an optimistic belief – is not, the Hospital asserts, in line with the jurisprudence. WRH submits that there is no case law in which a delay of six years in filing a grievance has been excused. 23. The Hospital also asks me to reject the proposition that the benefit obtained by the parties arising from the Union’s belief (and the resulting delay) provides an appropriate labour relations justification for providing an extension. WRH submits that providing an extension based on a belief such as that held by the Union would, in fact, be contrary to good labour relations policy. It asks (rhetorically): How much longer might a union attempt to extend a grievance time limit on the basis of an “optimistic belief”? WRH insists that not providing an extension in the 16 present circumstances would not amount to “punishing” the Union. It asserts that OPSEU failed to pursue the grievance “path” in a timely way, and has not provided a reasonable explanation for its failure to do so. 24. The Hospital submits that while the issue(s) in these grievances may be “important”, grievances concerning important issues are not immune from being untimely. It contends that a grievance that raises a serious or important issue could be expected to be given more attention by the employee and the union than one that does not (citing Hamilton (City), supra, at para. 16). The Hospital asserts that, in any event, much of what the Union has said about the “burden” placed on Pharmacy Technicians is based on disputed facts. It maintains that for many Pharmacy Technicians, the steps to registration were not especially burdensome. It points out that WRH paid course fees and provided other assistance towards obtaining registration, and that many Pharmacy Technicians completed the registration requirements by 2014 (some as early as 2011). This is not a situation, the Hospital insists, in which WRH ignored the experiences of Pharmacy Technicians. 25. WRH asks me to reject the notion that the distinction between a continuing grievance and a continuing effect supports extending the time limits. It contends that such a proposition not only goes against the case law, it obviates the need for arbitrators and reviewing courts to determine the point at which a dispute ar ises and whether the grievance pertaining to it was filed in a timely manner. The existence of “ongoing effects”, it asserts, does not justify allowing untimely grievances to go forward. Were that the case, the Hospital says, a single breach with a continuing effect would always be timely. 26. The Hospital disagrees that the confluence of circumstances in this case is unique and therefore warrants an extension of the time limits. It acknowledges that certain events caused the Union to be optimistic. However, WRH maintains that, at bottom, the Union knew it had a dispute with the Hospital, and chose – for more than six years – not to file a grievance in relation to it. The Hospital further submits that a belief that members’ wages are less than the “industry standard” is not unique to this case. The Hospital points out that such disparities are what bargaining is for. The Hospital asserts that the notion that grievors have an interest in ensuring that industry standards apply to them exists for every entitlement under a collective agreement, and provides no basis for extending time limits for grievances. 17 27. The Hospital maintains that it is not necessary for me to find that there has been “flagrant disregard” of the time limits or bad faith on the part of the Union to deny the extension. According to the Hospital, I need only have regard to the principle that action and inaction have consequences – the consequence in this circumstance being that a grievance will be dismissed. Analysis 28. OPSEU acknowledges that the policy and group grievances at issue in this case were not filed within the time limits set out at Articles 8.04 and 8.05 of the Collective Agreement, and are therefore untimely. It asks me to extend (or relieve against) the time limits pursuant to the authority conferred upon me by subsection 48(16) of the Labour Relations Act, 1995. The Hospital presented argument that – in view of the Union’s reliance on Article 22.02 of the Collective Agreement – the instant grievances effectively constitute a “formal protest” for the purpose of that provision. Subsection 48(16), the Hospital says, does not authorize me to extend a time limit relating to the process under the provision. As the question of whether or not the imposition of the registration requirement constitutes the creation of a “new occupational classification” goes to the merits of the grievance(s), I will not address that point of argument in this decision. I will proceed on the basis that the instant grievances raise issues that may be grieved in accordance with Articles 8.04 and 8.05 of the Collective Agreement. 29. Subsection 48(16) is a discretionary provision that authorizes an arbitrator (or arbitration board) to extend the time for taking steps in a grievance procedure. In order to exercise their discretion, the arbitrator or arbitration board must be satisfied that “there are reasonable grounds for the extension” and that “the opposite party will not be substantially prejudiced”. Both requirements must be met. Subsection 48(16) provides: Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. 18 30. The decisions referred to by the parties set out some key principles regarding the significance of time limits and the operation of subsection 48(16). Those principles may be summarized as follows: a. - “amicable industrial relations” require the parties to “pay attention to their own rules of procedure […] and be consistent in their application” (Victoria Hospital Corp., supra, at page 17); b. - arbitral deference must be granted to the parties’ contractual arrangements for the grievance procedure and the consequences for failure to follow that procedure (Algoma Steel Inc., supra, at para. 23); c. - it is not the purpose of a “discretionary provision” like subsection 48(16) to “permit the parties to ignore the terms of their collective agreements at will” (Victoria Hospital Corp., at page 23); d. - The purpose of subsection 48(16) is to relieve against technical objections based on the failure of a party to observe the time limits set out in grievance provisions of a collective agreement (Re Becker Milk Company Ltd., supra, at page 219, quoted in St. Clair Catholic District School Board, supra, at para. 53); e. - mandatory language regarding time limits – in place of language expressly excluding the operation of subsection 48(16) – can nonetheless have the effect of limiting the application of s. 48(16) (Algoma Steel Inc., at para. 21); f. - mandatory language does not oust s. 48(16), but imposes a heavier onus on the party seeking relief (Hamilton (City), supra, at para. 12); g. - the phrase “reasonable grounds for the extension” is not synonymous with the reasonableness of the excuse advanced by the offending party. The phrase carries a “broader signification” that requires the arbitrator to weigh 19 other factors (Re Becker Milk Company Ltd., at page 221). 31. Over time, arbitrators in Ontario have settled on a set of factors by which to consider whether the party making a request under subsection 48(16) has provided “reasonable grounds” for the extension. The six factors originally set out in Greater Niagara District Hospital, supra (at paras. 12-19) are consistently adopted by arbitrators in cases like this one. In Hamilton (City), supra, Arbitrator Surdykowski added a further consideration: the language of the collective agreement. As was explained in Greater Niagara District Hospital (at para. 11), the arbitrator should examine as an “interrelated group” all factors relevant to the question of whether there are reasonable grounds for the extension. In Hamilton (City) (at para. 19), Arbitrator Surdykowski provided a further directive: “All relevant factors must be considered within the overall context of the situation, and the weight that will be given to a particular factor will depend on the circumstances”. I see no reason to diverge from the factors and principles set out in the cases referred to above. The factors (in the order in which I will address them) are as follows: 1. The stage at which the delay occurred; 2. Who was responsible for the delay; 3. The language of the collective agreement; 4. The length of the delay; 5. The nature of the grievance; 6. The reason for the delay; and, 7. Whether the employer could reasonably have believed a grievance was not going to be filed or that the grievance had been abandoned. 32. Factors 1 and 2 can be dealt with summarily. The delay in this case is in relation to the filing of the grievances. The Union is responsible for the delay in “originating” the policy grievance. The Union and/or the grievors is/are responsible for the delay in “presenting” the group grievance. 33. Article 8 of the Collective Agreement sets out the rules agreed upon by the parties regarding the filing and processing of grievances. Article 8.04 provides that policy grievances “shall be originated at Step No. 2 within fourteen (14) calendar days following the circumstances giving rise to the grievance”. Article 8.05 provides that a group of employees having identical grievances may present a group grievance “within fourteen (14) calendar days after the circumstances giving rise to the 20 grievance have occurred”. It was not argued that the word “may” in Article 8.05 relates to the time limit for presenting a grievance. For the purposes of this decision, I will assume without finding that the word “may” relates to the option being afforded to grievors having identical grievances to proceed as a group rather than individually. Article 8.15 provides that the time limits set out in Article 8 “are mandatory and failure to comply strictly with such time limits, except by the written agreement of the parties, shall result in the grievance being deemed to have been abandoned”. Article 8.15 thus confirms that the time limits are mandatory rather than directory, and imposes a consequence for non-compliance (deemed abandonment of the grievance). Article 8.15 does not expressly exclude the application of subsection 48(16) so as to prevent me from extending the time limits in Article 8. However, it does impose a heavier burden on the Union to establish reasonable grounds for its request. 34. The Union was given notice of the registration requirement for Pharmacy Technicians in November 2009. As OPSEU was filing grievances under the Central Agreement regarding changes to the Pharmacy Technician position as early as 2012, it is possible that the Union could have filed grievances on behalf of WRH employees at the same time (although the language of the WRH/OPSEU Collective Agreement predating the 2012-2014 Agreement is not before me, and the language of the 2012-2014 Agreement does not contain the “substantial change to an existing position” language of the Central Collective Agreement). In any event, as it had notice of the registration requirement well in advance of January 1, 2015 deadline, it was open to the Union to file a grievance within fourteen calendar days of January 1, 2015, even if it missed or did not have the opportunity to lodge a “formal protest” upon receiving notice of the registration requirement in November 2009. January 1, 2015 must be regarded as the date at which the “circumstances giving rise to the grievances” occurred. As the grievances were not filed until March and June, 2021, they were filed more than six years beyond the time limits set out in Articles 8.04 and 8.05. 35. Appropriate and equitable remuneration is unquestionably a serious matter to the individuals to whom the two grievances pertain. They quite reasonably expect to be paid in a manner that reflects their efforts to attain OCP registration, and is comparable to their peers in other Ontario hospitals. While this consideration might militate in favour of extending the time limit for a grievance in other circumstances, in the circumstances of this case it weighs against the Union and the grievors. Given the significance of the registration requirement to the affected 21 individuals – dating back to November 2009 – it could reasonably have been expected that the Union would file a grievance regarding the requirement (and/or the appropriate remuneration of Pharmacy Technicians) at the earliest opportunity, and certainly no later than January 15, 2015. It did not do so until more than six years later. The importance of the matter ultimately makes it harder for the Union to explain why it took so long for it to file a grievance. 36. OPSEU has offered two reasons for its failure to file a grievance before March 2021. First, the Union says that in January 2015, the Hospital effectively deprived it of the opportunity to grieve by not initiating the “new classification” process prescribed by Article 22.02. The second reason is that the Union believed that the Hospital would adopt the outcome of the grievances being heard by Arbitrator Gee, and implement the wage rate she determined. The Union asks me not to base my finding in respect of “reasonable grounds” solely on the reasonableness of these justifications. The Union maintains that it was not “neglectful or careless” regarding the wage rate issue, and that it did not lull the Hospital into believing that it was not interested in pursuing the matter of the Pharmacy Technicians’ remuneration. 37. In my view, the Union was not deprived of the opportunity to file a grievance in January 2015. The Union had been aware of the registration requirement for more than five years. OPSEU Locals covered by the Central Agreement had been filing grievances relating to the same requirement for several years. If the Union regarded the registration deadline as the point at which the Pharmacy Technician classification was changed by WRH, it should have filed a grievance against the Hospital by January 15, 2015. If it regarded the deadline as the point at which the Hospital “decided upon a new occupational classification”, it should have lodged a formal protest with the Hospital by February 1, 2015 (notice of the “new” classification having already been given). The Union took neither of those steps. Instead, it elected to address the changes to the Pharmacy Technicians’ classification (and the appropriate level of remuneration) in bargaining. 38. There is no question that the Union has kept alive the issue of the appropriate wage rate for this group. The Union trusted it would be resolved by the WRH adopting the outcome of the Central Arbitration process. That was a legitimate expectation under the circumstances, but not one that can bind the Hospital in this process. Since then, the Union appears to have made the strategic choice of pursuing a more normative wage rate for this group though collective bargaining and the interest arbitration process. These were, again, reasonable 22 choices. The Union can do this again though bargaining and/or Hospital Labour Disputes Arbitration Act, R.S.O. 1990, c. H14 once Bill 124 no longer affects outcomes. However, while the Union’s action certainly signalled an ongoing quest to achieve a normative wage for this group, its decisions to forgo the Article 25.02 grievance process at so many junctures gave the Hospital reasonable grounds to believe that such a grievance would not be filed 39. In the circumstances of this case, it was reasonable for the Hospital to believe that the Union was not going to file a grievance on behalf of WRH Pharmacy Technicians. No grievance was filed after the January 2015 registration deadline, and the matter of the Pharmacy Technicians’ remuneration became the subject of bargaining for the 2016-2019 Collective Agreement. Furthermore, if the Hospital could reasonably have expected a grievance following either the passage of Bill 124 or the issuance of Arbitrator Gee’s wage rate award, none was filed within the time limits prescribed by the Collective Agreement. Accordingly, by March 2021, it was reasonable for WRH to believe that OPSEU was not going to file a grievance regarding the wage rate of Pharmacy Technicians at the Hospital. 40. The Union has made a valiant effort to persuade me that there are reasonable grounds for extending the time limits for the instant grievances. However, having regard to the wording of the grievance provisions of the Collective Agreement, the length of the delay (considered in light of the nature of the grievances), the reasons given for the delay (considered in light of the length of the delay), and the reasonable belief of the Hospital that no grievance would be filed (also considered in light of the length of the delay), I find that reasonable grounds for an extension are not present in the circumstances of this case. 41. As reasonable grounds for an extension have not been made out, I am not required to determine if the Hospital would be substantially prejudiced by an extension. 42. Accordingly, the grievances are dismissed. Dated this 4th day of April, 2022. “Kelly Waddingham” Kelly Waddingham