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HomeMy WebLinkAbout2021-1506.Decarlo 2023-01-06 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-1506 UNION# 2021-0368-0134 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Decarlo) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Tatiana Wacyk Arbitrator FOR THE UNION Robert Healey Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel HEARING December 8 & 13, 2022 2 Decision BACKGROUND: [1] The Grievor has been a Correctional Officer at the Central East Correctional Centre since September 2002. [2] This decision deals with the Employer’s challenge of the timeliness of the Grievor’s challenge of a 20-day suspension, and OPSEU’s request that I exercise my statutory discretion to extend the timeline in the Collective Agreement for filing the Grievance. [3] The suspension was for the use of unnecessary and excessive force on two occasions and acting in an inappropriate and unprofessional manner by using an MK3 OC cannister to intimidate an inmate. While the Grievor initially filled out a timely grievance form, it was never filed. More will be said in that regard below. [4] The Grievor had a prior 20-day suspension for excessive use of force. The Grievance regarding that prior suspension, dated September 30, 2019, is currently before me. [5] The Grievor’s employment was subsequently terminated on March 17, 2021. The reasons for his termination included using unnecessary and excessive force. [6] The Grievance challenging the Grievor’s termination is also before me. [7] The Grievance at issue, regarding the March 5, 2020, 20-day suspension, was filed on September 2, 2021, following a failed attempt to find a resolution regarding the Grievor’s termination. [8] Article 22.2.2 of the Collective Agreement requires grievances to be filed within 30 days after the circumstances giving rise to the complaint have occurred or have come or ought reasonable to have come to the attention of the employee. It states: 3 22.2 If the complaint or difference is not resolved at the local level an employee may file a grievance, in writing, through the Union, with their manager within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee, who will in turn forward the grievance to the designated management representative. [9] Accordingly, in order to comply with the 30-day timeframe set out in the Collective Agreement, the Grievance ought to have been filed on or about April 20, 2020. (discounting Good Friday on April 10 and Easter Monday on April 13, 2020). As the grievance was filled on September 2, 2021, there is no dispute it is untimely. Specifically, it is just more than 16 months and one week late. [10] Consequently, pursuant to Article 22.14.1, the Grievance shall be deemed to have been withdrawn. Specifically, that provision provides: 22.14.1 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. [11] However, Article 22.14.7 of the Collective Agreement grants GSB arbitrators the jurisdiction to exercise their jurisdiction to extend the Collective Agreement timelines for all stages of the grievance and arbitration process. It provides: 22.14.7 … [T]he GSB has the jurisdiction to apply section 48(16) of the Ontario Labour Relations Act to extend the timelines specified in the collective agreement at all stages of the grievance and arbitration processes. [12] OPSEU asks that I exercise my discretion in this instance, to extend the time for filing the Grievance pursuant to section 48(16) of the Labour Relations Act, 1995, SO 1995, c1, Sch A. That provision states: 48 (16) 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. 4 THE JURISPRUDENCE: [13] Section 48(16) of the Labour Relations Act has been interpreted by various arbitrators. [14] In that regard, the Employer relied on the following: Becker Milk v. Teamsters, Local 647, [1978] OLAA No. 71 (Burkett); OPSEU (Robbins) v. Ontario (LCBO), 2015 CanLII 36165 (ON GSB) (Lynk); OLBEU (Wicken) v. Ontario (LCBO), GSB#2216/97 (Knopf); OLBEU (Gamble) v. Ontario (LCBO), GSB#1635/96 (Gray); OPSEU (Berday) v. Ontario (MTO), 2008 CanLII 70540 (ON GSB), (Devins); OPSEU (Ng) v. Ontario (MGS), GSB#2009-3379 (Mikus); OPSEU (McClelland) v. Ontario (MCSCS), 2013 CanLII 42611 (ON GSB) (Briggs); OPSEU (Lachance) v. Ontario (MCSCS), 2017 CanLII 30326 (ON GSB)(Briggs); OPSEU (Barker) v. Ontario (SOLGEN), 2020 CanLII 20374 (ON GSB) (Gee); and, Ontario Public Service Employees Union (Monk et al.) v. Ontario (Community Safety and Correctional Services and Ministry of Children and Youth Services), 2010 CanLII 28621 (ON GSB). [15] OPSEU relied on: Becker Milk v. Teamsters, Local 647, supra; Ontario (Ministry of Health and Long-Term Care) and OPSEU (Kaltagian), Re, 2015 CarswellOnt 5978; and, Greater Niagara General Hospital v. O.N.A., 1981 CarswellOnt 1881. [16] Each of the decisions is informed by the factual context in which it is made. However, one of the most comprehensive discussions appears in Vice-Chair Lynk’s decision in Robbins, supra: V. The Law [31] The starting point for the determination of whether a legal decision-maker, operating under s. 48(16) of the Labour Relations Act, 1995, should exercise her or his jurisdiction to relieve against an untimely filed or advanced grievance is the 1982 ruling by Arbitrator Schiff in Greater Niagara General Hospital, supra. His award has become the touchstone for assessing timeliness claims in Ontario. Building upon an earlier seminal award on timeliness by Arbitrator Burkett in Re Becker Milk, supra, Arbitrator Schiff laid out six interrelated factors to assess the worthiness of a request to relieve against the time limits in a collective agreement so as to dismiss a grievance on the basis that it is untimely, and to not hear and decide the matter on its merits: 5 i. The nature of the grievance – The more significant the issue is to the parties – such as a termination or the imposition of serious discipline, or a vital collective agreement interpretation – the greater the weight that should be given to an extension. A matter of less significance will be accorded less weight. ii. Whether the delay occurred at the launch of the grievance or at some later point in the process – If the delay occurred with a failure to initiate the grievance within the timelines, the employer will not learn what the grievor alleges nor have an opportunity to secure its own position. A prejudice caused by the failure to adhere to time limits may not be as serious to the employer if the delay occurred later in the process. iii. Whether the grievor was responsible for the delay – A stronger presumption against any timeliness relief would exist if the grievor bore sole or primary responsibility for the delay. Notwithstanding this, if the responsibility for the delay fell entirely or largely on the union, this would not become a positive feature in favour of granting the relief. Rather, it would more likely have the effect of neutralizing the factor. iv. The reason(s) for the delay – A finding of bad faith by the party that failed to file or advance the grievance would be a considerable mark against providing relief. Negligence, carelessness or disregard for the time limits would be less unacceptable, but still a matter of some concern. v .The length of the delay – All things being equal, the longer the delay, then the greater the onus on the union and/or the grievor for providing a credible reason to explain the delay. vi. Whether the employer could reasonably have assumed that the grievance had been abandoned – Union inaction that lulls an employer into a false sense of security may be given a weighty factor. This goes to the prejudice that an employer may face: it may well be lead to believe that no grievance is forthcoming or that the matter has been implicitly withdrawn by the union, and it may not take steps to protect its position, such as preserving memory, protecting evidence or marshalling arguments. [32] In addition to this very helpful list of factors from Greater Niagara Regional Hospital, subsequent rulings on timeliness have issued some useful observations that have enriched the analysis into this question: • The sophistication of the grievor, and her or his familiarity with the grievance process, can be an element to be considered. If the grievor is, or had been, a local union officer, or had previously filed grievances, this may be a factor against extending time limits: Donwood Institute and OPSEU (1997), 1997 CanLII 25132 (ON LA), 60 L.A.C. (4th) 367 (Brandt). Conversely, a grievor who had never filed 6 a grievance before, and who depended on the union for guidance, may result in a more lenient approach towards timelines: Ontario (MCSCS) (Brennan), supra. • Arbitrators differ as to the significance of an initial failure to grieve unchallenged prior discipline which was used to justify a subsequent termination, based on the principles of progressive discipline. Some arbitrators have held that unchallenged prior discipline cannot be reopened merely because the grievor is now facing termination based in part on the prior record. There must be other, persuasive reasons to justify timeliness relief: Ontario (MCSCS) (McClelland), supra. Other arbitrators have said that unchallenged prior discipline which creates a ‘serious impact’ on the grievor requires the employer to demonstrate ‘real prejudice’ in order to thwart the operation of s. 48 (16). Real prejudice amounts to a course of action that would not otherwise have been taken and it must be a course of action that cannot be reversed without harm to the employer: Vale Inco Ltd, supra. This latter observation is broadly consistent with the requirement in s. 48 (16) that the prejudice to the employer has to be substantial. • A three month delay is not a modest delay, but nor is it, by itself, an intolerable length of time. While no hard-and-fast rule creating a bright red line based on the length of the delay exists, or should exist, given the other factors at play, requests for a time limit extension in this time range have been turned down – Ontario (MCSCS) (McClelland); British Columbia Public Service Agency, supra – and, conversely, have been allowed to proceed in order to be heard on their merits: Liquor Control Board of Ontario (Brennan),supra. To be sure, arbitrators have dismissed grievances when the timeliness breaches had been shorter than three months –Helen Henderson Care Centre,supra; and West Fraser Electro/Mechanical Ltd., supra – and permitted time extensions when the breach far exceeded three months: Re City of Toronto and CUPE, Local 43 (1990), 1990 CanLII 12877 (ON LA),17 L.A.C. (4th) 420 (Springate); and Re Ferranti-Packard Transformers Ltd. and USWA, Local 5788(1993),1993 CanLII 16683 (ON LA),36 L.A.C. (4th) 307 (Haefling). • Unions and employees owe a general obligation of due diligence to employers and the industrial relations process in ensure the timely filing and advancement of grievances: (Ontario (MCSCS) (Mazara). However, this must be balanced with the long-standing industrial relations rule that, as much as possible, workplace differences should be resolved on their substance rather than on technical or procedural issues: Blouin Drywall Contractors Ltd. and UBC (1975),1975 CanLII 707 (ON CA),8 O.R. (2d) 103 (C.A.);Vale Inco Ltd. • While the ultimate legal source governing the issue of timeliness in Ontario is s. 48 (16), adjudicators should pay attention to the intentions of the parties, as expressed by the language governing time limits in the collective agreement. If the parties have chosen mandatory language, even if they have decided not to preclude the operation of s. 48 (16), this should be a consideration in the decision-making: (Ontario (MCSCS) (Mazara); Liquor Control Board of Ontario (Gamble), supra; Helen Henderson Care Centre. 7 PARTY POSITIONS: [17] The Employer submitted the only factor which weighed toward my exercising my discretion to extend the time for filing the Grievance was the seriousness of the Grievance. The Employer submitted this should not overtake other factors and has not done so in other cases. [18] OPSEU submitted the essential test was set out in Becker Milk, supra, and none of the cases following are a significant departure from a simple assessment of the circumstances leading to the delay and whether there exists an absence of prejudice. [19] OPSEU maintained that the cases relied upon by the Employer are distinguishable, and that in this instance there are compelling reasons for the delay and no substantial prejudice to the Employer. Accordingly, I ought to exercise my discretion to extend the timeline for filing the Grievance. DETERMINATION: [20] In this instance, I find the conglomeration of factors to be considered lead me to decline to exercise my discretion pursuant to section 48(16) of the LRA, to extend the timelines negotiated and agreed to by the parties. My analysis and reasons are set out below. ANALYSIS AND REASONS: [21] I accept what Arbitrator Lynk characterized as the “six interrelated factors to assess the worthiness of a request to relieve against the time limits in a collective agreement”, laid out by Arbitrator Schiff in Greater Niagara General Hospital, supra, as the appropriate starting point. I will deal with each in turn. The Nature of the Grievance [22] As indicated above, while the Employer conceded the seriousness of the discipline weighed in favour of granting the extension, it submitted the other factors outweighed this element of the analysis. 8 [23] The Employer asked that I not be swayed by the fact that the suspension at issue, at the time unchallenged, was a consideration in the Grievor’s subsequent termination. In that regard, the Employer relied on Vice-Chair Briggs decision in McClelland, supra, in which she accepted, at paragraphs 62 and 63, that the three-day suspension the grievor, in that instance, wished to challenge was “not insignificant”, and that, as in this instance, it was an “underpinning” for the grievor’s later termination. However, she stated at paragraph 63: [63] The Union also asked this Board to take into account the fact that this grievance is an underpinning for the grievor’s later termination. While that suggestion has some initial attraction, I must decline the Union’s invitation in this regard. If an individual is terminated after a long but unchallenged disciplinary history, should an arbitrator agree to hear newly filed grievances regarding the entire disciplinary history merely because it culminates in a termination? I think not. While that might be the extreme example of what the Union is suggesting, it illustrates the difficulty with the argument. An individual cannot ask this Board to re-visit or re- open their previously unchallenged disciplinary history merely because they are ultimately faced with a termination of employment. [emphasis added] [24] Vice-Chair Briggs rejected the Union’s submission that the three-month delay in that instance was “relatively insignificant” and refused to exercise her discretion to extend the time for filing a grievance challenging the three-day suspension. [25] OPSEU, on the other hand, argued that consideration ought to be given not only to the serious nature of the discipline itself, but the role it now plays in the progressive discipline administered by the Employer, resulting in his termination. [26] Indeed, the Union submitted that allowing the 20-day suspension to remain unchallenged on the Grievor’s record, may result in his termination being upheld on the basis of the progressive discipline, whereas the underlying basis for his termination alone would not be sufficient to support that level of discipline. Analysis [27] There is no dispute the 20-day suspension constitutes a serious discipline, and in isolation weighs in favour of exercising my discretion to allow the Grievance to proceed. The fact it played a role in the progressive discipline resulting in the 9 Grievor’s termination, adds to the weight to be given to this factor. However, I agree with Vice-Chair Briggs that it cannot be determinative, as the other factors must be considered. Whether the Delay Occurred at the Launch of the Grievance or at Some Later Point in the Process [28] The Employer pointed out that in this instance, the delay occurred at the very start- point of the grievance process. As stated at paragraph 35 in Robbins, supra, this left the Employer understandably assuming it would not have to defend its decision to impose the 20-day suspension on the Grievor through the grievance process, which the Employer maintains weighs against granting an extension. [29] Further, in Barker, supra, at paragraph 70, Arbitrator Gee, affirmed that delay at the beginning of the grievance procedure is “the most problematic stage for delay to occur”… [30] OPSEU submitted that no one factor was determinative, and maintained the primarily consideration was the reason for the delay and the existence of prejudice. Analysis [31] There is no dispute that a delay at the beginning of the arbitration process i.e., the failure to file a grievance, is most problematic. One of the primary reasons parties agree to fairly stringent timelines for bringing disputes forward is that it allows for early resolution, and when that is not possible, it enables both parties to turn their mind to gathering and preserving evidence. Those opportunities are lost and diminished further as time goes by if neither the Employer nor Union is aware a dispute exists. [32] As Vice Chair Briggs stated at paragraph 68 in Lachance, supra, where the delay was 2-3 months but occurred at the front end of the grievance process: 10 [68] Turning first to the matter of the length of the delay. In considering this factor I have taken into account that the delay at issue is at the outset of the grievance procedure. That is to say that the Employer would have had at least a two-month period and perhaps as long as a three-month period where it thought Mr. Lachance was not advancing a complaint under the grievance procedure of the Collective Agreement. A delay at the front end of the grievance procedure is more problematic for an Employer because it has not been put on notice – in any way – that there is a live dispute. Memories can fade and documents simply not kept which in hind sight might have been important. Vice Chair Gray in Re Mazara said, at paragraph 59, that “a delay at the initial stage weighs more heavily against an exercise of discretion to extend time limits, all other things being equal, than a delay at the later stages of the grievance process”. [33] The fact the delay was at the beginning of the process is troubling in this instance as well, and weighs against granting an extension. This is particularly the case when the length of the delay is considered, as seen further below. Whether the Grievor was Responsible for the Delay [34] The Grievor testified that in December 2017, his family was threatened by an inmate, but the Employer was unresponsive to his requests for assistance. Rather, the Grievor was simply told to avoid the inmate. [35] The Grievor testified tensions were also high in the institution and that he and the other front-line staff felt bullied and intimidated by management, who took issue with trivial and minor infractions. The tensions escalated over the winter of 2018, and in the spring of 2019, the front-line staff refused overtime. This heightened tensions further and resulted in out-side managers being brought into the institution. [36] As a result of the continued tensions, on March 30, 2019, the Grievor posted five Ministry anti-violence and anti-bullying posters in the workplace, including in the administration area. The posters were subsequently removed by the Grievor approximately two weeks later. 11 [37] In the summer of 2019, the inmate who had threatened the Grievor’s family returned to the institution. When the inmate was moved back into the Grievor’s unit, the Grievor again expressed his concerns. While the Grievor was initially reassigned to shifts which took him out of the unit, he was subsequently reassigned to his usual unit, at his request. [38] While the Grievor was again advised to avoid that inmate, he testified the situation made him anxious, as he knew that inmate was going to cause problems for him. [39] The Grievor testified it was demoralising to know the Employer, whose duty it was to keep him safe from dangerous people, refused to support him when he asked for protection. [40] It was the Grievor’s interaction with this inmate that resulted in his first 20-day suspension without pay on September 30, 2019. The suspension was immediate. [41] On October 31, 2019, the Grievor’s third day back following the suspension, he received an allegation letter regarding his having posted the anti-bullying poster in the administrative area on March 30, 2019, without authorization. [42] The Grievor testified the suspension he had just served, as well as this new allegation, brought after such a long delay, made him feel targeted and that the Employer was “coming after him” for his job. As a result, at the subsequent November 6, 2019, allegation meeting, he suffered a panic attack, resulting in an inability to communicate. [43] Consequently, the allegation meeting was adjourned, and the Grievor was directed to Staff Services to start an application to the Workplace Safety and Insurance Board (“WSIB”) for an occupation stress injury. However, this claim was unsuccessful, at least in part because his physician indicated she did not feel comfortable signing the WSIB documentation advising that he take time off due to what she saw as a workplace dispute. Consequently, the Grievor testified he “just went back to work”. 12 [44] However, the environment remained the same, with management working against the front-line workers. He heard nothing more regarding his March 30, 2019 posting in the administrative area. [45] The Grievor maintained he decided to keep his “head down and not give the Employer reason to pull the trigger”. [46] No pay had been deducted during the time the Grievor was serving his suspension in September 2019. Rather, near the end of November 2019, the Grievor was advised he would not receive his next two pays, to satisfy the outstanding wages from his suspension. As this was the time period immediately before Xmas, the Grievor raised the matter with OPSEU. Although an installment plan was worked out with OPSEU’s assistance, the Grievor felt the Employer had deliberately waited to “stiff” him at Xmas. [47] The Grievor testified that his personal life had been tumultuous during his period, as he and his wife had separated in 2017. However, by the end of 2019 they were reconciling. He indicated this was “good but tense”. [48] The incident resulting in the subsequent March 5, 2020 20-day suspension at issue occurred on December 13, 2019. The Grievor testified that he did not understand why he had been disciplined, and that the inmate involved was very strong and aggressive, and he had used a “straightforward use of force”. While he was truthful in his reports that he did strike the inmate, he was told he was not forthcoming and was lying. Consequently, the Grievor testified that as he had already told the truth, he did not know what else he could do. [49] The Grievor indicated an OPSEU grievance officer prepared a grievance form for him regarding the suspension. While he could not specifically recall doing so, the Grievor testified he must have printed and signed the grievance form, and returned it to the grievance officer. 13 [50] However, while the grievance officer subsequently called a few times, the Grievor testified he “dodged” the calls. When he listened to the messages the grievance officer left for him, he would get overwhelmed. The Grievor described this as feeling “like a panic attack”. All he could think about was taking on management, and giving them more reasons to target him. He indicated he simply wanted to keep his head down and get back to work. He felt he just couldn’t face the situation, and had to set the whole matter aside. [51] Consequently, the Grievance was not filed. When asked why he did not reactivate the Grievance at the time of his termination on March 17, 2021, the Grievor testified he understood that he had abandoned it. Consequently, he only discovered he could pursue it after the failed mediation session between the parties which occurred at the end of August 2021. [52] The Employer submitted that to the extent OPSEU was suggesting the delay in filing the Grievance was the result of a fear of reprisal by the Employer, Vice-Chair Gray in his decision in Monk, supra, had indicated that while this may justify a modest delay, this would not be the case when the delay was significant. Vice-Chair Gray stated, in part, at paragraph 20: [20] An allegation that the employer threatened or intimidated an employee into not filing a grievance could itself be raised as a grievance (discrimination on the basis of union activity contrary to Article 3.2), which would be subject to the very time limits in issue here. Extending the time for filing a grievance because of such employer misconduct is analogous to providing a remedy for that misconduct. Should a request for a remedy for employer misconduct be entertained despite the delay in complaining of it? That question has to be addressed in accordance with the considerations already described. It cannot be said that an explanation for a grievor’s multi-year delay in complaining of such gross employer misconduct is self evident, not when it would be well known to the grievor that her or his trade union stands ready, willing and able to challenge any perceived threat to its members’ rights. While an allegation that the employer threatened reprisal if a grievance was filed might, if true, afford reasonable grounds for some modest extension of the time for filing the grievance, 14 it must be otherwise when years unexplainedly pass before the complaint about alleged threats of reprisal is raised. [53] In any event, the Employer pointed out that if the Grievor did have a bona fide fear of reprisal if he grieved the 20-day suspension, the Grievor gave no compelling reason for not reactivating the Grievance when his employment was terminated. Rather, he conceded he had abandoned it. [54] OPSEU, while not denying the Grievor was to blame for the delay, again pointed out this is not determinative. Rather, all factors identified in the jurisprudence must be considered in determining whether it is appropriate to extend the timeline for filing the Grievance. [55] OPSEU further submitted that all the decisions relied upon by the Employer are distinguishable, as none involve a highly tense and difficult workplace such as experienced by the Grievor. Analysis [56] In this instance, it is apparent the Grievor was solely responsible for the delay, as he knowingly and deliberated abandoned the initial grievance. [57] As stated in Robbins, supra, at paragraph 31. iii set out above in paragraph 16, this results in a stronger presumption against any timeliness relief. [58] While such a presumption can be overcome by the reasons for the delay, I find that is not the case in this instance, as dealt with below. The Reason(s) for the Delay [59] The Employer submitted no reason exists for granting an extension of the time for filing the grievance. It pointed out there was no question the Grievor was 15 knowledgeable regarding the process for filing timely grievances, as he had done so with regard to his earlier 20-day suspension, as well as his termination. [60] Further, to the extent OPSEU wished to rely on medical reason for the delay, the Employer submitted it ought to be held to Vice-Chair Brigg’s decision in Lachance, where at paragraph 71, she noted that medical evidence must be tendered for that purpose. The Employer submitted that in the absence of such evidence there was no objective basis on which to conclude the Grievor failed to file a timely grievance because of medical difficulties, which diminishes the weight such assertions could attract. [61] OPSEU pointed out there was no indication the Grievor failed to file the Grievance out of negligence or was blameworthy in some manner. Rather, his uncontroverted evidence was that he felt targeted, was afraid for his job, and felt it best to keep his head down and not antagonize the Employer further. [62] OPSEU submitted there was no authority to support the Employer’s position that no weight ought to be given to the Grievor’s evidence regarding his feelings of stress and being overwhelmed, and that only medical evidence in that regard was acceptable. [63] Rather, OPSEU encouraged me to consider all the facts, including the Grievor’s historic feelings of being unsupported by the Employer when his family was threatened, and of being targeted, and come to my own conclusion regarding whether there were compelling circumstances for exercising my discretion to extend the timeline for filing the grievance. Analysis [64] I am persuaded the Grievor was experiencing stress and feeling overwhelmed by the overall situation he found himself in. These feelings are not unusual when an Employee is faced with a significant discipline, and other conflicts at work. However, while the Grievor also relied on his personal circumstances at the time 16 and described things as “good but tense”, it appears his reconciliation with his partner gave him some reason to feel more positive. [65] While I agree medical documentation is not necessary in all instances, I cannot ignore the fact that in this instance, the Grievor’s own physician did not see the stress he was experiencing at the time sufficient to recommend he remain off work. In the face of that assessment, the Grievor did not seek additional medical assistance or an alternative assessment. Rather, he simply returned to work. [66] Further, this is not a case where the Grievor was unaware regarding the need or process for filing a grievance. Indeed, he took the initial step of doing so. However, he was also fully aware he needed to work with the Union in bringing the matter forward and to the Employer’s attention. Yet he made no effort to communicate with the Union regarding his challenges and how he was feeling, to see if it could offer assistance. Rather, by his own account he “dodged” the Union’s attempt to contact him and instead knowingly “abandoned” the Grievance. While he now regrets this decision, I am not persuaded the reasons for the delay weigh in favour of my exercising my discretion to extend the timeline for filing the grievance. The Length of the Delay [67] The Employer submitted the delay in this instance borders on extreme. It pointed out that in Wicken, supra, Vice-Chair Knopf refused to exercise her discretion to allow a discharge grievance to proceed when the delay was 16 months, as is the case here. While she also gave weight to the other factors from Greater Niagara General Hospital, supra, she pointed out, at the last paragraph of page 12: The length of the delay is a very significant factor in this case. In none of the cases cited by the Union was there a delay of over 16 months. The cases dealing with delay often talk about the importance of having discharge cases heard on their merits despite delays of a matter of months. In the case at hand, we have a delay of well over one year. This very lengthy delay is the very type of thing that labour arbitration and the grievance process were designed to avoid. 17 [68] However, the Employer pointed out that in other instances arbitrators have refused to exercise their discretion in instances where the delay has been less that 16 months. [69] In Lachance, supra, as indicated, Vice Chair Briggs was dealing with a delay of 2-3 months. She stated at paragraph 69: [69]…[T]he Board jurisprudence – much of which was put before this Board and cited above - has made clear that a two-month delay – particularly at the outset of the grievance procedure – is a “significant” or “substantial” delay. Vice Chair Gray, in Re Smith et al was considering an allegation of an improper level of pay for a group of employees. He stated, beginning at paragraph 17: As I have already noted on the view most favourable to the grievors the delay is about three months beyond the already ample time frame provided by the collective agreement for bringing a complaint to the grievance process. This is a substantial delay. A bar based on such a delay should not be described as merely “technical”. These grievances are objectively more important to the grievors than a grievance about a day’s pay or minor discipline would be, but less important than a discharge grievance would be. [70] In Barker, supra, at paragraph 70, Arbitrator Gee, refused to exercise her discretion to extend the time limits when the delay at issue was, at its highest, nine and a half months. [71] In Berday, supra, Arbitrator Devins found, at paragraph 24, that the non-renewal of the grievor’s contract was “comparable if not identical to cases involving discharge”. However, she refused to exercise her discretion to allow the grievance in light of the delay which she found, at paragraph 25, to be at least 4 months but more likely to be 7.5-month delay. [72] In Ng, supra, Vice Chair Mikus, at paragraph 16, dealt with an untimely grievance of three suspensions, which she found were significant in the spectrum of progressive discipline which resulted in the grievor’s ultimate termination. While she found this militated in favour of the exercising her discretion she chose not to as she found the delay to be unreasonable and lengthy. 18 [73] She described the delays as follows in paragraph 15: The length of the delay in the instant case is significant. The first suspension began on June 16th, some 6 months after the grievance was filed. The second suspension began on August 6th, some 4 months before the grievance. Even the last suspension, which began on October 8, 2009 preceded the grievance by 2 months. The length of the delays does not assist the grievor’s request for an extension. [74] Also, as noted above, in McClelland, supra, Vice-Chair Briggs, accepted the three- day suspension the grievor wished to challenge in that instance was “not insignificant”, and that it was “an underpinning” for the grievor’s later termination. However, Vice-Chair Briggs rejected the Union’s submission that the three-month delay in that instance was “relatively insignificant” and refused to exercise her discretion to extend the time for filing a grievance challenging the three-day suspension. [75] Further, the Employer noted that while Vice-Chair Lynk chose to grant the extension in Robbins, supra the delay was significantly less that in this case, i.e., approximately 3 ½ months. [76] Finally, Vice-Chair Gray, in his decision in Gamble, supra, refused to exercise his discretion to allow for a termination grievance to proceed. He found the two-year delay was simply too great, notwithstanding the lack of demonstrable prejudice that would be suffered by the Employer, to warrant relief under s. 48 (16). [77] OPSEU, on the other hand, submitted that all the decisions relied on by the Employer are distinguishable as none involved the highly tense and difficult workplace experienced by the Grievor. Nor did any involve investigations where the details were recorded in such meticulous detail, as discussed below. [78] OPSEU conceded the length of delay is an important consideration because it is a yardstick for measuring prejudice, in terms of the impairment of memories as time passes. However, in this instance, OPSEU submitted no such prejudice existed, given the substantial documentation, and in particular witness statements in the form 19 of Occurrence Reports which were acquired in the course of the Employer’s investigation. Accordingly, OPSEU submitted the Employer was in precisely the same position to defend its decision in September 2021 as it would have been in March 2020, had the Grievance been processed and referred to arbitration in a timely manner. [79] In support of its argument that the length of delay must be determined within the total circumstances it occurred, OPSEU relied on the following from Arbitrator Schiff’s decision in Greater Niagara General Hospital, supra: 18 Perhaps more than all others, this factor [length of delay] is conditioned by the total circumstances. We see from some previous awards that, in particular circumstances, two months’ delay in filing a grievance (albeit a discharge grievance) is not too long: Re Becker Milk Co. Ltd. and Teamsters Union, supra. Nor is a delay of two and a half months in referring the grievance to arbitration: Re Scarborough General Hospital and Ontario Nurses’ Assoc. (1980, unreported (Scott)). The delay here is about two and a half months, a not inconsiderable length of time but nevertheless the same as that excused in Scarborough General Hospital. For what it is worth, the delay here is much less than the nine and a half months in Re City of Toronto and C.U.P.E., supra, where the board refused to invoke s. 37(5a) under a reading that required the union to establish due diligence and a reasonable excuse for the delay. [Emphasis added] Analysis [80] I find that, as submitted by the Employer, the more than 16-month delay is substantial, and borders on the extreme. It exceeds the delays in Ng, supra, McClellan, supra, and Berday, supra, all cases in which the Vice-Chair refused to extend the time limit for filing, and is considerably longer that 3-month delay forgiven in Robbins, supra. Rather, the delay is closer to the more than 16 months described as “very lengthy” in Wicken, supra, and the 24-month delay in Gamble, supra, described as “extreme” at paragraph 29. [81] I note, that at paragraph 29 of Gamble, supra, Vice-Chair Gray did state that on the facts in that instance, there would have been reasonable grounds to relieve against a roughly 19-month delay, had the grievance had been filed at that time. This was due 20 to the grievor having, until that point, received erroneous legal advice. However, as I find below, there is no similar mitigating aspect of the case in this instance. [82] Further, as discussed below, I do not find the extensive investigative record relied on by OPSEU ameliorates the prejudice experienced by the Employer because of the substantial delay. [83] While I agree that delay is only one factor to be considered in determining whether to exercise my discretion to extend the timeline for filing the grievance, and that it must be assessed within the total circumstances of its occurrence, I find the substantial delay in this instance weighs heavily against exercising my discretion to do so. Whether the Employer Could Reasonably Have Assumed That the Grievance Had Been Abandoned [84] The Employer pointed out there was no suggestion the Grievor’s intention to challenge the suspension was brought to the Employer’s attention. Rather, the Grievor conceded he had abandoned it. Accordingly, it was entirely reasonable for the Employer to assume the suspension was unchallenged. [85] The Employer pointed out that both prior suspensions were referenced in the Grievor’s March 17, 2021 termination letter, which indicates the Grievor’s “employment record” was relevant in the decision to terminate his employment. Yet the Grievor further delayed more than five months to challenge his March 5, 2020 suspension. [86] The Employer further pointed out that in Gamble, supra, Vice-Chair Gray held that where the delay is long enough, no proof of prejudice is necessary. He stated: [26] The prejudice caused by delay may also be more subtle and, by its nature, difficult to demonstrate. The memories of witnesses who are still available will nevertheless have faded, particularly if there has been no notice that they may have to testify about those memories. As a result, their testimony may be or may seem less reliable, and thence less persuasive, than it would have if there had 21 been timely notice of the dispute. Those now concerned with the dispute may not be able to determine what testimony or documents would have been discovered and preserved earlier, had there been timely notice of the dispute. They may not know what statements would have been given at the time by those witnesses whom they can now identify, nor what might have been found in documents known to have existed then that have since been destroyed. Indeed, they may not now know of or discover helpful witnesses or relevant documents whose existence would have been discovered had timely assertion of the dispute triggered an earlier search for them. It is in the nature of these forms of prejudice that their precise effects and perhaps even their existence in a particular case cannot be demonstrated. [27] It must be remembered that subsection 48(16) of the LRA identifies the existence of reasonable grounds for an extension is a question distinct from whether the opposite party would suffer substantial prejudice if an extension were granted. A defaulting party who lacks a reasonable excuse for delay cannot claim the benefit of the more liberal view of the reasonable grounds test, which treats the length of the delay as a distinct consideration in assessing reasonable grounds, and then invite the arbitrator or arbitration board to ignore the delay because it has not resulted in specific, demonstrable prejudice to the opposite party’s ability to defend its position if the grievance is allowed to proceed. [28] The possibility that delay may have had more subtle prejudicial effects, effects that may not be detectable or demonstrable, is one reason why the length of the delay is an appropriate consideration in assessing whether there are “reasonable grounds” for an extension, even when the respondent cannot demonstrate actual prejudice. … [29] Even when the opposite party cannot demonstrate substantial consequent prejudice, delay that is due to lack of due diligence on the part of the grievor or someone acting on his or her behalf can be so extreme that the importance of a discharge grievance will not be sufficient basis for using the power in subsection 48(16) of the LRA to override agreed-upon time limits for filing a grievance. The delay here was that extreme. Indeed, the delay from the date of discharge until April 1996, when the grievor says he first contacted the union on the advice of his second lawyers, was that extreme. Most of the decisions relied upon by the union involved delays of several weeks or a few months. … [emphasis added] [87] This view was echoed by Arbitrator Gee in Barker, supra: [75] Turning to the question of prejudice, I do not agree that prejudice is not to be assumed but rather must be proven by the Employer. The jurisprudence establishes that there is an inherent 22 labour relations interest in having grievances brought within a reasonable time frame and a failure to do so is prejudicial to the conduct of a fair hearing and workplace harmony. The case of Sault College, supra, relied upon by the Employer, is a recent decision that considers the issue in the context of a grievance alleging harassment. The quote from Sault College set out at paragraph 19 above is instructive. As stated by the arbitrator, the harm caused by delay in the labour relations context has long been recognized: 37. In my view, when striking a balance, an arbitrator should also keep in mind the time honoured principle of labour relations that grievances about alleged violations of the collective agreement should be brought within a reasonable time after the matter in issue arose (see U.E. v. Canadian General Electric Co. (Davenport Works) (1952), 3 L.A.C. 980 (Ont. Arb.)(Laskin) [88] While acknowledging the seriousness of the 20-day suspension, the Employer submits this too is a case where the delay is so extreme that prejudice need not be demonstrated. [89] OPSEU points out the “presumption of prejudice” in instances of extreme delay is merely a presumption, which can be overcome based on the circumstances. The reasons for the delay, and the Employer’s ability to defend must still be assessed. [90] In this instance, OPSEU submitted the Employer engaged in a thorough investigation of the incident leading to the suspension at issue. This included the Grievor’s detailed Use of Force Occurrence Report, as well that of ten others, some of which were quite detailed. [91] OPSEU further submitted the Notice of Allegation letter sent to the Grievor made clear the Employer had a detailed set of allegations, and a detailed position regarding the policies and documents on which it relied in determining the Grievor’s conduct was worthy of discipline. [92] OPSEU again maintains the facts in this case can be distinguished from those relied on by the Employer, as none involve a similar meticulously recording of details. 23 Analysis [93] While OPSEU is correct that the presumption of prejudice can be overcome based on specific circumstances, I find OPSEU has not succeeded in doing so in this instance. [94] The Employer bears the onus to demonstrate it had just cause to issue the challenged discipline. While the Occurrence Reports provide a context for that decision, any challenge to their contents will have to be met by the viva voce evidence of their authors. This would, of course, rely on their recollection of the events. The nature of the dispute i.e., unreasonable use of force, is such that the fine details of what occurred can be critical. The passage of more than 16 months beyond what would have been the designated time for filing the grievance, particularly without any notice that such details must be retained, persuades me that the presumption of prejudice remains intact in this instance. DETERMINATION: [95] At paragraph 19, Arbitrator Gee in her decision in Barker, supra, referenced Arbitrator Mullin’s decision in Sault College and OPSEU, 2019 CarswellOnt 9458 where he states: 37. In my view, when striking the balance, an arbitrator should also keep in mind the time honored principle of labor relations that grievances about alleged violations of the collective agreement should be brought within a reasonable time after the matter in issue arose (see: U. E. v. Canadian General Electric Co. (Davenport Works) (1952), 3 L. A.C. 980 (Ont. Arb.) (Laskin)). As Professor Laskin put it so eloquently in General Electric, supra, the proper administration of the collective agreement requires “… mutual recognition by the parties of a principle of repose as to all claims under the Agreement not asserted within a reasonable time.” There is a real danger to present relations by permitting a grievance to drag up ghosts from the past when the Employer is either unaware of the matters of concern at the time they arise (and therefore unable to address them) or where the employer believes that concerns have been addressed and the matter concluded. …. 24 [96]While Arbitrator Mullins was dealing with allegation of harassment, I find his comments of equal application in this instance. [97]In order to reflect the need for timely resolution of disputes, the time limits agreed to by parties to a collective agreement are, in most instances, expressed in days rather than weeks or months. They are important and ought to be respected except for instances where there are compelling reasons not to do so. I find there are no such compelling reasons in this instance. [98]Rather, while acknowledging the seriousness of a 20-day suspension, for all the reasons set out above, I find the preponderance of factors to be considered in deciding whether to extend such timelines pursuant to Article 48(16) of the LRA lead me to decline to exercise my discretion in this instance. [99]The Employer’s Motion is granted. [100] The Grievance dated September 2, 2021, challenging the Grievor’s 20-day suspension of March 5, 2020, is dismissed. Dated at Toronto, Ontario this 6th day of January 2023. “Tatiana Wacyk” Tatiana Wacyk, Arbitrator