HomeMy WebLinkAboutGray 09-07-24
IN THE MATTER OF AN ARBITRATION
BETWEEN
SENECA COLLEGE OF APPLIED ARTS AND TECHNOLOGY
("the College")
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
("the Union")
GRIEVANCE OF HARVIA GRAY
GRIEVANCE NUMBER 2007-0560-0004
BOARD OF ARBITRATION
Michel G. Picher - Chair
John Podmore - College Nominee
Sherril Murray - Union Nominee
APPEARANCES FOR THE COLLEGE:
William Lemay - Counsel
Bushra Rehman - Co-Counsel
Jane Wilson - Acting Director Diversity Centre
Kavita Chhiba - Director, Human Resources Services
Arthur Burke - Director, Counselling, Learning Centres, Disability & Health
Services
Fran Manson - Human Resources Partner
APPEARANCES FOR THE UNION:
Ed Holmes - Counsel
Robin Gordon - OPSEU, Grievance Officer
Laurence Olivo - Vice-President, Local 560
The hearing in this matter was held in Markham on May 27, 2009.
AWARD
This arbitration concerns a grievance against the discharge of a probationary
employee. The grievor, Ms. Harvia Gray, maintains, among other things, that there was
an element of discrimination against her contrary to the Ontario Human Rights Code in
the decision not to continue her employment. The Union now wishes to withdraw the
grievance, a step which is objected to by the College in a dispute which raises elements
of first impression as relate to the involvement of a new administrative tribunal. The
College submits that in the circumstances the grievance should be dismissed.
A brief review of the history of this grievance is in order. Hired by the College as
a counsellor in December of 2006, Ms. Gray was advised on October 16, 2007 that her
employment was being terminated before the expiry of her probation period. Her
grievance, dated October 31, 2007, alleges dismissal without just cause and in bad
faith. The grievor also filed an application under section 34 of the Ontario Human
Rights Code seeking relief from the Human Rights Tribunal of Ontario for alleged
discrimination in her discharge based on race, colour, sex and reprisal or threats of
reprisal. By a decision dated January 22, 2009, the Human Rights Tribunal of Ontario
deferred the grievor's complaint before that Tribunal pending the conclusion of this
arbitration, having been advised that we declined to adjourn our proceedings. That
decision states, in part:
1
In most cases, the Tribunal will grant deferral where the facts
and issues raised in an application are part of an ongoing
grievance process under a collective agreement: Gray v.
Rouge Valley Health System, 2008 HRTO 120; Aubin v.
Waterloo (Regional Municipality), 2008 HRTO 214. There is
no reason to depart from this approach in this case.
On the grievor's behalf at the first hearing of this matter, on November 18, 2008,
the Union sought to have this matter adjourned pending the outcome of Ms. Gray's
complaint before the Human Rights Tribunal. For reasons extensively related in an
Award dated December 19, 2008, the majority of the Board declined to adjourn the
grievance and the hearing was scheduled to resume on May 27,2009.
By letter dated May 25, 2009, the Union notified the Board that the grievance
was withdrawn. As represented during a conference call hearing held on May 26, 2009,
the College took the position that the hearing should be convened to deal with its motion
that the grievance be dismissed in light of the withdrawal. In a brief decision dated May
26, 2009, the majority directed, "".that the hearing is to resume on May 27, 2009 to
consider and rule upon the respective positions of the parties in light of the motion of the
College to dismiss the grievance." In the result, the parties made full submissions to the
Board with respect to the Union's notification of withdrawal of the grievance and the
College's request that, in the circumstances, the grievance-should be dismissed.
In support of the College's position counsel for the Gollege submits that the
history of this grievance demonstrates what he characterizes as forum shopping and an
2
K
abuse of process on the part of the grievor, with the support of the Union. Counsel
notes that the case itself involves some degree of complexity and that it was originally
scheduled for two days of hearing, being May 26 and 27, 2009. In anticipation of the
hearing the College expended considerable time and financial resources in preparation
for the arbitration, as a result of which the simple withdrawal of the grievance without
any adjudicated result would be prejudicial to the College.
Counsel for the College submits that a board of arbitration has residual
jurisdiction to control the process in relation to any grievance before it, but it is duty
bound to control that process So as to prevent any abuse and that, in any event, the
withdrawal of the grievance is a matter in the discretion of the Board of Arbitration. He
submits that that discretion should not be exercised in favour of withdrawal where to
allow the withdrawal would be to countenance an abuse of process. Counsel submits
that the Rules of Civil Procedure, which he invokes by analogy, amply support the
College's approach.
At the outset counsel for the College points to the provisions of the Colleges
Collective Bargaining Act, and in particular section 14(1) which contemplates that all
differences between an employer and an employee organization arising from the
administration of the collective agreement are to be subject to final and binding
settlement by arbitration. He refers the Board to the decision of the board of arbitration
in Re: Surrey Memorial Hospital and Hospital Employees' Union, (2005) 141 L.AC.
3
(4th) 278 (C. Taylor, O.C.), In that award the Board found that the grievor was dishonest
with both her union and the board of arbitration and that to allow her request to withdraw
the grievance was tantamount to an abuse of process. On that basis her grievance was
dismissed. In arriving at that conclusion the following considerations appear at pp 281-
284:
[12J In Re School District No. 75 (Mission) and
B.C. T,F., [2003J B.C,C.AAA No. 339 (OLO, 75 C.L.AS.
123 (Taylor), it states, at para. 10:
As a general rule, an application to withdraw a
grievance should not be subject to terms and
conditions. The correct approach where the
application to withdraw is made before the
hearing commences is to permit the withdrawal
and leave its significance to any future tribunal
to determine.
[13] Here, the general rule does not apply. The
Grievor has engaged in disreputable conduct intentionally
designed to mislead the board.
[14J An exception to the "general rule" is noted by
Brown and Beatty, Canadian Labour Arbitration, 3rd ed. At
para: 2:3233:
... the prevailing view is that, subject to the
withdrawal amounting to an abuse of process,
a party can unilaterally withdraw a grievance
prior to a hearing, but it cannot do so on a
"without prejudice" basis.
[15J Referring to that statement, Arbitrator Christie in
Re Atlantic Pilotage Authority and Canadian Merchant
SelVice Guild (2004), 130 L.AC. (4th) 204, at p. 8 (OL) [po
212 L.AC.J, said:
The statement from Brown and Beatty
recognizes that there may be cases where, to
avoid abuse of process and the like, the union,
even though it is the party bringing the
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grievance to arbitration, may not be allowed to
withdraw it.
[16] The Union relied on Re British Columbia Ferry
Corp. and B.C.F.M.W U. (Lawlor) (2002), 111 L.AC. (4th)
393 (McEwen),. in which the union was permitted to withdraw
a grievance during the course of the arbitration without
costs. The arbitrator, however, was careful to point out that
there was no abuse of the arbitration process [pp. 400, 402]:
... it makes no industrial relations sense - - in
the absence of evidence that the party bringing
the application has somehow abused the
arbitration process - - to proceed with an
adversarial proceeding over a complaint that
has been withdrawn (page 6 QL) ... It is up to
the party that began the process to decide
when and why to end the process, subject of
course to ensuring that there is no abuse of the
process itself (p. 7) ... Given ... the absence in
this case of abuse of the arbitration process ...
.1 am satisfied that the Union's application to
withdraw a grievance should be granted. (p. 7)
[17] In Re School District No. 75 (Mission) and
B.C. T.F., [2005] B.C.C.AAA No. 94 (QL), 81 C.L.AS. 80
(Burke), relied upon by the Union, the arbitrator rejected the
employer's submission that two prior withdrawals acted as a
bar to the third grievance being heard. At p. 19 (QL),
Arbitrator Burke "d id not find an abuse of process ... or
significant prejudice to the Employer."
[18] Those cases all make an exception for "abuse of
process,"
[27J In Re National-Standard Co. of Canada Ltd. And
C,A.W. Loc. 1917 (1994), 39 L.A C. (4th) 228 (Palmer), a
discharge grievance was dismissed when the grievor failed
to comply with an order for the production of tape of
conversations. The employer moved for dismissal of the
grievance for abuse of the arbitration process.
[28] Beginning at p. 5 (QL) [pp. 234-35 L.AC.],
Arbitrator Palmer discussed the issue of jurisdiction:
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The first issue to be determined in this matter,
then, is whether arbitrators, acting pursuant to
the powers entrusted under the Ontario Labour
Relations Act, have the power to dismiss a
grievance on the basis requested by the
company. I believe they do. First, there can.
be no dispute but that arbitrators can order the
production of documents ... The general
issue, then is what one can do if a party fails to
comply with such orders. In my opinion, as
was decided in the Thompson Products case,
the most reasonable approach is to adopt the
procedure of the courts. This is consistent with
the philosophy of the Ontario Labour Relations
Acts expressed in s.45(8.1), para.5, where it
states arbitrators have the power:
5. To make such orders or give
such directions in proceedings as
he, she or it considers
appropriate to expedite the
proceedings or to prevent the
abuse of the arbitration process.
It is also consistent with the old adage of the courts ibi
jus, ibi remedium: where there is a right, there is a
remedy. Accordingly, if the arbitrator cannot find an
adequate remedy to deal with these situations, the
parties are forced back on the recourse to the courts.
This, in my view, results in an "abuse of the arbitration
process". It is time-consuming and expensive. It is
unreasonable to set up a system which is to settle
grievances in a relatively expeditious and inexpensive
manner and then not give it the power to deal with
such procedural matters.
Counsel stresses that in the case at hand the grlevor initially sought to have the
arbitration proceedings adjourned, and was unsuccessful in that effort. He submits that
. to accede to the withdrawal of the grievance, on extremely short notice before the
hearing, would be to countenance forum shopping by the grievor who, as appears from
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her initial position, prefers to have the matter dealt with before the Human Rights
Tribunal.
Counsel also relies on the decision of the Chair of this Board in Re Great Atlantic
& Pacific Co. of Canada Ltd. and Retail, Wholesale & Department Store Union, Local
414, (1991) 22 L.A.C. (4th) 72 (M.G. Picher). In that case, after two complete days of
hearing the Union sought to withdraw its grievance, against the opposition of the
Employer, which sought to have the hearing continued. At pp 79-80 the Arbitrator ruled
as follows:
Having reviewed the submissions of the parties, and
in light of further discussions with both counsel by telephone,
the arbitrator is satisfied that the board does not have
jurisdiction to direct the continuation of the arbitration in the
face of the decision of the union to withdraw its grievances.
As with any party litigant, a union progressing a grievance at
arbitration retains the right to abandon or withdraw its
grievance at any time, It may do so, however, subject to the
grievance being accordingly dismissed by the arbitrator. As
both parties must well appreciate, the dismissal of a
grievance is not without consequence to the parties.
Specifically, it is tantamount to an adjudication on the merits
of the allegations made in the grievance, and an arbitral
finding that they are not established and are without merit.
As regards the instant grievances, therefore, the
union's withdrawal of the grievance, and its resulting
dismissal by the arbitrator is tantamount to an adjudicated
finding that the three allegations made by the union in its
grievance are not established. That is to say, it has failed to
establish that the grievor was discriminated against by
reason of his union office, it has failed to establish that he
was discriminated against by reasons of his age and, lastly,
it has failed to establish that the productivity standards
~mployed by the company are not appropriate as they may
relate to the age of employees, or anomalies in the
standards, including inconsistencies in the time allowed for
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identical jobs. All of these allegations must be found to have
been dismissed upon their merits.
Reference is also made by counsel for the College to Re Cipa Lumber Company
Ltd. and United Steelworkers of America, Local 1-3567, (2005) 140 L.AC. (4th) 86
(Kinzie). In that case, at p 92, the operative principles were described as follows:
I accept the proposition that a party may unilaterally
withdraw a grievance if that step is taken prior to the
commencement of the hearing. See Re Health Labour
Rela(;ons Assoc, of British Columbia (Grace Hospital) and
H.EU, Loc. 180 (1985), 20 L.AC. (3d) 247 (Kelleher).
In this case, the Union's purported withdrawal of its
grievance occurred after four days of hearing had been held.
Having considered the authorities referred to in my March 3,
2005 letter to Ms. Gregory, I am of the view that absent the
consent of the other party, a party's desire to withdraw its
grievance from further consideration by the arbitration board
appointed to hear and determine it in circumstances such as
these is subject to the discretion of that arbitration board,
Depending on the circumstance of each case, the arbitration
board may allow or disallow the application with or without
conditions. See Re Scott Maritimes Lid. and C,EP., Loc.
440, supra [52 L.AC, (4th) 316 (Veniot)], and Re British
Columbia Ferry Corp. and B.C,F.M. W. U (Lawlor), supra 111
L.AC. (4th) 393 (McEwen)].
Noting that the case had consumed four days of hearing time, Arbitrator Kinzie cited the
award in Great Atfantic & Pacific Company of Canada Ltd. and dismissed the grievance.
Reference is also made to Re Canadian Red Cross Blood Transfusion Service
and Ontario Nurses' Association, (1981) 30 L.AC. (2d) 23 (Shime). While counsel
acknowledges that the decision in that award has had some following, having allowed
the grievance to be withdrawn, he submits that the decision of Mr. Shime does not deal
8
with the issue of abuse of process, an element which was raised in a number of
subsequent cases which were dealt with differently. He also questions Arbitrator
Shime's analysis of the Rules of Civil Procedure which he discussed by analogy, and
distinguishes the suggestion that a board of arbitration should not compel proceedings
to go ahead at least as relates to the specific facts of the instant case where, in any
event, a hearing will in allllkelihood proceed before the Human Rights TribunaL
The final arbitration award cited by counsel for the College is Canroof Corp. v.
Teamsters Local 230, (1997) 67 LA.C. (4th) 28 (Waisglass). Counsel notes that
although Arbitrator Waisglass allowed the grievance in that case to be withdrawn, the
record indicates no finding of abuse of process on the part of the party seeking to
withdraw, a fact which he maintains distinguishes the case which is before us,
Additionally, counsel referred the Board to certain analogous provisions of the Rules of
Civil Procedure concerning the discontinuance of an action and the decisions of the
courts in Squire v. Hogan, [2001] O.J. No. 3988 (Ontario Superior Court of Justice) and
Simanic v, Ross, [2004] 71 O.R. (3d) 161 (Ontario Superior Court of Justice).
Counsel for the Union makes a forceful argument against dismissal. As his
principal theme he submits that we should not impose consequences on the grievor,
something which should be the role of another tribunal, such as the Human Rights
Tribunal, should the matter proceed there. As a first position he submits that we are in
fact without jurisdiction to dismiss a grievance which the Union has unilaterally
9
withdrawn. In the alternative, should we have such jurisdiction, counsel submits that
this is not a case in which to exercise it, as in fact there is no abuse of process.
In framing the issue, counsel for the Union stresses that we are to some degree
faced in the instant case with an issue of first impression. He notes that the complaint
filed by the grievor with the Human Rights Appeal Tribunal of Ontario is being advanced
under new legislation and a new complaint process whereby matters are no longer
handled through a Human Rights Commission but proceed directly to the Tribunal for
consideration. The approach which the Tribunal may take in the face of the withdrawal
of a parallel grievance at arbitration is still in the development stages. That, counsel
argues, should prompt us to move cautiously and in full sensitivity to the grievor's rights.
With respect to the issue of abuse of process, counsel for the Union stresses that
as a first step, as recorded above, the Union sought an adjournment of the arbitration
proceedings, a request which this Board denied. It is only following our ruling that the
grievor made the decision to withdraw her grievance. Counsel stresses that it is open to
the College to argue before the Human Rights Tribunal that it should not hear the case
based on the withdrawal of this grievance, should it choose to do so, in the event that
the grievor should decide to proceed before the Human Rights TribunaL Counsel also
suggests that even if we should dismiss this grievance the grievor would still retain the
ability to proceed, in any event, before the Human Rights Tribunal. It is, he submits,
10
pure speculation as to what the Tribunal might do in the face of any objection by the
College.
With respect to the jurisprudence reviewed above, counsel stresses that all of the
cases in which a board of arbitration decided to dismiss a grievance in the face of a
withdrawal involved findings of abuse of process by reason of the fact, in part, that in
each of those cases the arbitration board had already commenced its hearing and
heard evidence. That, counsel stresses, is not the case in this grievance. As an
alternative submission counsel urges that should we decide to dismiss the grievance,
that we expressly say that the dismissal is "not on the merits", as was made expressly
clear by the board of arbitration which dismissed the grievance in the Surrey Memorial
Hospital case. We should not, counsel urges, set up the conditions for a possible
argument of res judicata to be made before a subsequent tribunal.
Nor does counsel for the Union accept that there is any genuine prejudice to the
College in the face of the withdrawal of the grievance. Firstly, he emphasizes that the
withdrawal of grievances is an everyday event. While the Union might have preferred a
longer period of notice, it was only advised on the eve of the hearing of the grievor's
wish to withdraw. It is not uncommon for short notice withdrawals to occur in
arbitrations generally, notwithstanding that parties may have expended time and money
in preparing for their case. He stresses that that does not, in the general course, justify
a board of arbitration effectively forcing a matter on for hearing under a threat of
11
dismissal. Counsel also draws to the Board's attention that the issues in the arbitration
are virtually identical to the issues to be dealt with before the Human Rights Tribunal.
Should the grievor proceed before that Tribunal the College's preparation for this case
will obviously be effectively the same preparation as for its appearance before the
Human Rights Tribunal. There is, in that circumstance, no clear loss or waste of
preparation effort.
The Union differs substantially with the College as to the governing principles
which emerge from the reported cases. Its counsel submits that the cases generally
stand for the proposition that it is open to an employee grieving to withdraw his or her
grievance, or for the Union to withdraw its grievance, as the case may be, Some of the
cases confirm that a party can withdraw without prejudice while others seem to indicate
that a withdrawal is simply a withdrawal, with any consequences as to the withdrawal to
be determined by any future tribunal which may be faced with the same issue. As noted
above, the only cases where withdrawal has been denied and a dismissal has been
substituted by a board of arbitration are those involving a clearly demonstrated abuse of
process, an exception to the general rule. In the case at hand, given the novelty of the
Human Rights Tribunal's procedures and the new complaint regime under which it
operates, this Board of Arbitration should not, counsel submits, make any determination
which might limit the ability of the Human Rights Tribunal to ultimately make such
decision as it deems appropriate. Counsel maintains that if we simply allow the
withdrawal and effectively acknowledge that the grievor retains all of her rights intact,
then the table is set for the Human Rights Tribunal to determine whether her complaint
12
before it should be dismissed, assuming that submission is made by the College. To do
otherwise, and to dismiss this grievance, would, the Union argues, effectively be
prejudicial to the grievor.
Counsel for the Union relies heavily on the decision of the board of arbitration in
Re Canadian Red Cross Blood Transfusion SeNice. In that case the majority of a
board chaired by Arbitrator Owen B. Shime declined to compel the parties to proceed
with a hearing in the face of the Union's unilateral withdrawal of the grievance. At pp
27 -28 the majority reasoned) in part, as follows:
In our view the more serious issue is not one of
jurisdiction but what the board should do once told that the
association does not wish to proceed with the grievance.
We note that this is not one of those cases where the union
and an individual employee are at odds about whether to
proceed. While the board of arbitration has jurisdiction to
hear and determine the issues, it does not, in our view, have
the authority to compel the association to call witnesses and
to proceed with the hearing. The association is the party
that decided to initiate the proceedings and has no less a
right to discontinue the matter now as it did during the
grievance procedure. By analogy, a plaintiff in the .ordinary
Courts may at any time, subject to costs (which is not a
factor here since costs are statutorily determined),
discontinue an action and we see no reason why a grievor
should be prohibited from so doing. The grievor originated
the proceedings and had carriage of them to this point -- all
along the grievor has had the choice whether to continue or
not and we see no reason why that choice should be
proscribed at this state of the proceedings.
The employer has suggested the possibility that a
union could harass an employer with grievances, although it
does admit with some candour that there is no reason to
suggest that there is abuse in this case. If there is
harassment it should be supported by evidence: Re
Governing Council of University of Toronto, supra, at p. 434.
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And, if harassment is demonstrated, there may be an
appropriate remedy. However, there is no suggestion of
harassment in this case and therefore no reason to decide
this case on that ground.
The employer also suggests that issues were raised
by the association which it wishes to resolve. We see no
reason why, if the issue was so important, the employer
could not have filed a grievance to deal with the matter
rather than await the union's grievance. What if the union
had decided to abandon the grievance in the grievance
procedure - where would that have left the employer?
Clearly, if this issue was so crucial to the employer it might
have had the matter resolved by filing its own grievance.
Also, should the employer now decide to proceed with the
matter, the association would be hard put to object to a delay
in proceeding, where the employer was able to demonstrate
that the association's grievance and the issues raised by it
would have determined those matters that the employer felt
were important and that delay arose because the employer
felt the matter would be resolved in this arbitration.
Also, it is our view that as a matter of labour relations
policy we ought not to propel the parties into a proceeding of '
an adversarial nature unless there is a more substantial
reasons advanced. The arbitration of this case on the merits
may involve a hearing where individuals are examined and
cross-examined, where witnesses may contradict each other
and where relationships might be harmed rather than helped
by proceeding in that fashion. Also, we are concerned about
the expense to the parties in proceeding. In the result we
would require greater reasons than have been expressed to
require that this matter proceed on the merits.
And, finally, as to the issues of estoppel and res
judicata raised by the employer, it is our view that those are
matters which should be resolved by any subsequent board
of arbitration if another grievance is filed, It is not likely that
the principle of res judicata would apply since there has not
been a hearing on the merits. Also, a review of the cases
indicates that those matters have been resolved by boards
of arbitration where a second grievance is filed and, in our
view, that ought to remain the practice: see, e.g., Triangle
Conduit & Cable Canada (1968) Ltd., supra, We hasten to
add that the association has admitted that while its letter
withdraws the grievance "without prejudice" it cannot
unilaterally invoke that doctrine.
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It may be noted that in the Canadian Red Cross Blood Transfusion Service case the
union's notice of withdrawal preceded the commencement of the hearing, just as
occurred in the case at hand. That case obviously did not, as this case, involve the
apparent wish of a grievor to proceed before a specialized administrative tribunal for
resolution of the same issues,
Counsel for the Union places a number of cases before us which he submits
support the general principle against dismissal being argued by the Union, in addition to
the Canadian Red Cross Blood Transfusion Service, Surrey Memorial Hospital and
Canroof Corp. awards already cited by the College: Re Health Labour Relations
Association of British Columbia (Grace Hospital) and Hospital Employees' Union, Local
180, (1985) 20 L.A C, (3d) 247 (Kelleher); Re BiIt Rite Upholstering Co. Lid, and United
Steelworkers, Local 32 U.O., (1990) 9 L.AC. (4th) 361 (Barrett); Re Reliacare Inc. and
Service Employees Union, Loc. 210, Re, (1991) 20 L.AC. (4th) 170 (Dissanayake); Re
Burnaby (City) v. Canadian Union of Public Employees, (2000) 91 L.AC. (4th) 40
(Sanderson); Canadian Niagara Hotels Inc. v. Union of Needletrades, Industrial and
Textile Employees, Local 16506, [2006] a.L.AA No. 781 (Hetz); Re Algonquin College
v. Ontario Public Service Employees Union, Local 415, [2008J O.L.AA No. 440 (Knopf).
In reply, counsel for the College insists that the facts of the instant case do
constitute an abuse of process. He notes that the grievor unsuccessfully requested an
adjournment in December of 2008 and that thereafter the Human Rights Tribunal of
15
Ontario made the decision to defer to arbitration. He also notes that correspondence
from her personal lawyer cites the Union as being a party to the Human Rights
complaint, which is not correct. In the submission of counsel for the College, it is at the
very least incumbent upon the grievor and the Union to provide an explanation as to the
grievor's decision to discontinue before this Board of Arbitration, a matter upon which no
evidence or explanation has been forthcoming, He submits that the facts so described
do support a conclusion of an abuse of process by the grievor. He also reiterates the
position of the College that it is prejudiced by reason of the delay incurred and the loss
of time and money in preparation for the arbitration hearing.
We turn to consider the merits of this dispute. At the outset we consider it
important to note the fundamental distinction between those awards which have
resulted in a dismissal when a party seeks to withdraw, and those where the board of
arbitration simply allows the withdrawal without any condition or consequence.
As both parties acknowledge, abuse of process, however that concept may be
expressed, appears to be the operational factor in those awards which opt for dismissal.
In virtually all of the cases reviewed a dismissal has been ordered in the face of a
request to withdraw where the withdrawal comes at some point well into the
presentation of the arbitration case. An underlying sentiment of boards of arbitration in
that circumstance appears to be that a party cannot simply withdraw in the face of what
might possibly appear to be the emergence of a weak or doubtful case, particularly
16
where the opposite party has expended time and effort in the presentation of its case.
While each case depends on its particular facts, when that occurs some boards of
arbitration have been inclined to conclude that the effective abandonment of the
grievance in mid-hearing justifies its dismissal on the merits. From a policy standpoint,
at a minimum that approach would tend to discourage a party from initiating a "trial"
grievance to see how it might fare, pulling back the grievance if the hearing does not
appear to be progressing in a positive way.
A very different approach predominates among arbitrators where the hearing has
not yet commenced and the grieving party seeks to simply withdraw its grievance.
Counsel for the College has cited to this Board no prior award which has dismissed a
grievance in that circumstance. Indeed, the preponderant jurisprudence appears to be
clear, if not uniform, in confirming that dismissal is not appropriate in that circumstance.
In our view the general rule was well summarized in the award of Arbitrator
Sanderson in the Burnaby (City) case where, at para. 11 the following comment
appears:
As I see it, when an application to withdraw the
grievance from arbitration is made to an arbitrator, such
application will invariably be granted, if it is made before the
hearing has begun or at an early stage in the proceedings.
Such a result is consistent with sound labour relations
policies and common sense. A decision to abandon.
adjudicative proceedings, for whatever reasons, at this point,
will almost always be honoured and respected by arbitrators.
At the other extreme, if the hearings have been completed,
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the arbitration board has become engaged in deliberations
and an application to withdraw is then made, different
considerations may arise, such as prejudice to the parties,
as well as a possible claim of abuse of the arbitration
process, In between are a range of possible factors to be
weighed by arbitrators in deciding how to exercise their
discretionary authority. In my view, when an application to
withdraw is made, particularly before the proceedings are
concluded, there is a significant burden on the opposing
party to convince an arbitrator why that application should
not be granted, if only because arbitrators should be
cautious about intruding into the tactical decision-making of
the parties to an arbitration matter. I also agree with
arbitrator Veniot that if an application to withdraw is granted,
as a general rule, the withdrawal should not be subject to
terms or conditions. If the union is permitted to withdraw a
grievance from arbitration on the basis that there is no
compelling reason for an arbitrator to refuse the application,
it must accept the consequences of that withdrawal in
recognition of the arbitral reality that arguments can be made
to another tribunal at another time as to the effect of the
withdrawal.
Generally boards of arbitration do not attach conditions, for example whether a
withdrawal is or is not "without prejudice", leaving for any subsequent tribunal eventually
seized of the same issue the decision as to the consequences of a withdrawal. That
was expressed by Arbitrator Dissanayake in the Reliacare Inc. award in the following
terms at para. 28:
To summarize my disposition of this matter, the union
is entitled to withdraw the grievance and take the position
that the withdrawal was without prejudice. It is on record
that the employer does not agree that the withdrawal was
without prejudice. If the issue comes up during a future
proceeding, it will be up to that board of arbitration to
determine whether the union was entitled to withdraw this
grievance without prejudice and if so what that means in the
particular circumstances of the matter before it.
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A recent award by Arbitrator Knopf in Algonquin College gives similar guidance
as concerns the withdrawal of a grievance under the very collective agreement which
governs our proceedings. In that case the union withdrew its grievance the night before
the arbitration, very much as occurred in the instant case. The College sought an order
for costs which was denied by Arbitrator Knopf. The College also refused to consent to
the withdrawal being on a "without prejudice" basis. In that regard Arbitrator Knopf
wrote as follows:
... While a party filing a grievance can always withdraw it,
that party cannot insulate itself from the consequences of
that withdrawal simply by asserting that the withdrawal is
"without prejudice." If the other party agrees to those terms,
then the condition comes into play. But absent such
consent, the withdrawal will not be considered as being
"without prejudice." As a result, the other party could make
submissions to a subsequent tribunal regarding the effect of
the withdrawal. This was recognized in Burnaby (City) and
C.u.P.E., supra, at p. 46;
... a party that withdraws the grievance from
arbitration should not attempt to insulate itself
from the potential consequences. of the
decision it has made by seeking to persuade
an arbitrator to impose terms such as "without
prejudice of precedent", unless there are
different circumstances than those in this case.
The employer should not be denied its
opportunity, if it is so inclined, to make
submissions to another tribunal regarding the
effect of the withdrawal from arbitration on the
deliberations of that tribunal. It will be up to
that tribunal to decide the issue put to it without
regard to terms of conditions in the arbitration
award.
It is important to note from this passage that it is not
up to the arbitrator who was scheduled to hear the
withdrawn grievance to decide the consequence of the
unilateral withdrawal. That will be decided by the next
arbitrator dealing with the issues raised in the original
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grievance, if and when the withdrawal becomes relevant.
Therefore, all that can be said at this point by this arbitrator,
is that the principles and authorities cited by the Employer
are well accepted, rational and worthy of consideration in the
parties' future dealings with each other.
How, then, do the foregoing principles apply to the case at hand? In approaching
that question we believe that there is an additional element of considerable Importance
in the instant case which must be carefully considered. The dispute before us does not
simply concern a general withdrawal of a grievance against the possibility of some
future dispute before another board of arbitration in respect of a similar grievance
concerning the same issues. To the extent that the bad faith alleged before us is
intertwined with the allegation of discrimination, what we have before us is a parallel
complaint presently filed before a provincial human rights tribunal, now operating under
new legislation and new procedures. As a citizen of the province the grievor is
possessed of an individual statutory right to file her complaint to the Human Rights
Tribunal of Ontario, which she has done. Although her reasons have not been
explained, it appears clear that she wishes to have her complaint heard by that Tribunal,
to the point of withdrawing her grievance before this Board of Arbitration. Significantly,
she does so before the commencement of the arbitration hearing. On what basis
should we visit any adverse consequence upon her for her having chosen to pursue an
avenue of redress which is her statutory right?
As both counsel acknowledge, there can be no certainty as to what, if any,
weight will be given by the Human Rights Tribunal of Ontario to the fact that a grievance
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and arbitration process was available to the grievor under the collective agreement and
she ultimately chose not to pursue it for the purposes of seeking redress. It would, with
respect, be presumptuous of this Board to speculate as to what conclusion might be
drawn by the Human Rights Tribunal. We consider it best for that specialized body to
make such determination as it deems appropriate without any comment or condition
from this Board. That, moreover, is in keeping with what we view as the predominant
arb~tral jurisprudence reviewed above.
Nor are we profoundly impressed with the argument of prejudice made by the
College in the instant. case. As counsel for the Union notes, the withdrawal of
grievances on the eve of arbitration is a common occurrence which generally does not
prompt a request for an order of dismissal. The concern in the instant case has to be
that the College's request for an order of dismissal from this Board, whether or not by
intention, is tactically weighted to enhance its ultimate position before the Human Rights
Tribunal. Even absent such an intention, weakening the grievor's case before the
Tribunal might well be the consequence of granting the order of dismissal which the
College seeks. We .cannot ignore the fact that that consequence might effectively
prejudice the grievor, bearing in mind that we have heard absolutely no evidence with
respect to the merits of her case. On the other hand, the College retains the fullest
ability to argue the effect of the withdrawal from arbitration when it does find itself before
the Human Rights Tribunal.
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In the result, we can see no responsible basis upon which to dismiss the
grievance, as requested by the College. In keeping with the well established
jurisprudence, we deem it mor~ appropriate to simply allow the withdrawal of the
grievance, making no comment as to whether or not it is on a "without prejudice" basis,
and allowing the Human Rights Tribunal of Ontario to hear such submissions and draw
such conclusions as it deems appropriate in respect of the consequences, if any, of this
withdrawal.
For all of the foregoing reasons, the College's request for a dismissal of the
grievance is denied.
Dated at Ottawa this 24th day of July, 2009,
Michel G, Picher, Chair
"Sherril Murray"
Sherril Murray, Union Nominee
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DISSENT
With respect I cannot agree with the Majority in simply allowing the withdrawal of this
grievance given all of the circumstances.
The action was a blatant abuse of the grievance and arbitration process and, as made
abundantly clear by the College counsel, it was very time consuming and a costly
process for what was no more than an exercise of "forum shopping" by the grie"vor.
The Majority's decision also fails to address the fact that the grievance and arbitration
process is designed to encourage the efficient, effective and timely resolution of
disputes. Part of the abuse of process in this case is that the grievor's conduct is
entirely contrary to this principle.
I would have dismissed the grievance.
"John Pod more"
John Podmore
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