HomeMy WebLinkAbout2021-0016.Policy.23-11-30 Decision
Crown 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# 2021-0016
Union# G-029-21-COR
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Policy) Union
- and -
The Crown in Right of Ontario
(Metrolinx) Employer
BEFORE Matthew R. Wilson Chair
FOR THE UNION Daniel Fogel and Jamie Burns
Hicks Morley Hamilton Stewart Storie LLP
Counsel
FOR THE EMPLOYER Dean Ardron and Simone Tremner-Caron
Ursel Phillips Fellows Hopkinson LLP
Counsel
HEARING June 30, September 22, October 16 and
November 10, 2023.
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Decision
PRELIMINARY MOTION
1. The grievance before me, filed by the ATU on March 11, 2021, challenges Metrolinx’s
decision to contract out work at the Willowbrook Rail Maintenance Facility and Yard and
Rail Layovers & Outposts (“Willowbrook Yard”).
2. This decision deals with three preliminary arguments made by Metrolinx. Specifically,
Metrolinx argues that the ATU’s par�culars are beyond the scope of the grievance, that
some of the allega�ons are premature, and one allega�on related to layoffs and
termina�ons cannot be pursued as a policy grievance by opera�on of Ar�cle 4.5 of the
collec�ve agreement.
3. For the reasons set out in this decision, I have decided to grant Metrolinx’s mo�on with
respect to the issue of layoffs and termina�ons as those allega�ons are precluded by
Ar�cle 4.5 of the collec�ve agreement. The other preliminary arguments raised by
Metrolinx are dismissed.
BACKGROUND
4. The contrac�ng out of work at the Willowbrook Yard is part of a larger Go Rail Expansion
program. As it is part of a mul�-phased project, the �melines and the impact on the
bargaining unit have changed since it was originally communicated to the ATU in
February, 2021.
5. The par�es filed an agreed Terms of Reference For Li�ga�on, which describes the status
of the contrac�ng out. Metrolinx advised the ATU that a two-year “Development Phase”
would commence a�er March 31, 2022. During the “Development Phase”, Metrolinx
and the contractor are to complete preliminary steps before the contractor engages in
the opera�ons and maintenance ac�vi�es that are the subject of the grievance. One of
these preliminary steps is to allocate and confirm the assets that are to be maintained by
the contractor. At the end of the Development Phase, Metrolinx can opt out of the
project agreement.
6. The grievance, which is filed as a Policy Grievance at Step 2, on March 11, 2021, reads as
follows:
Ar�cle(s) in dispute: Ar�cles 1, 2, 3, 6, 7, 27, Leter of Agreement #3 and any
other ar�cles, or employment related statutes that may apply
Grievance Statement:
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The Union hereby grieves that contrary to Leter of Agreement #3 the Employer
improperly contracted out bargaining unit work in the Willowbrook Rail
Maintenance Facility and Yard and Rail Layovers & Outposts (“Willowbrook”) as it
is contrac�ng out work that is “usually and presently performed by members of
the Union” and that the Employer’s “contracted ac�vi�es” are not for
“temporary or short-term specialized work”.
The Union seeks the following relief:
A Declara�on of the contraven�on of the Collec�ve Agreement;
An Order that the Employer cease and desist form con�nuing to violate
the Collec�ve Agreement as herein set forth;
A Direc�on that the Employer comply with all provisions of the Collec�ve
Agreement;
An Order that any affected employees be made whole;
An Order that the Union be made whole; and
Such further and other relief as the Union should advise and an arbitrator
may grant.
This grievance is without prejudice to the Local’s right to file a further
grievance(s) in the event that the employer should subsequently commit any
further breach of the Collec�ve agreement such as:
Improperly contracted out bargaining unit (sic) in Willowbrook as it is
obligated to give preference to its own employees performing the
contracted out work when cost-effec�ve resources are readily available
in-house
Failing to share with the Union details relevant to the proposed
contrac�ng out regard why it is necessary to contract out such work and
the business efficiency reasons for the necessity to contract out such
Work
Lay-offs or termina�ons result from the Employer’s contrac�ng out
contrary to Ar�cle 27 of the Collec�ve Agreement.
Please schedule a mee�ng within the �me limits of the Collec�ve Agreement to
resolve this grievance.
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7. A grievance mee�ng was held on March 23, 2021. Pam Hooke, Employee and Labour
Rela�ons Manager, tes�fied about the discussions in the grievance mee�ng. Ms. Hooke
tes�fied in a straigh�orward and credible manner and her evidence was not seriously
challenged.
8. Ms. Hooke tes�fied that the ATU had not specifically alleged that employees were
improperly laid off or that their employment was terminated. She had asked Rob
Cormier, the Local President, to assure ATU members that their employment would not
be terminated. According to Ms. Hooke’s evidence, Mr. Cormier agreed that the
messaging to the members would be that there would be no layoffs or termina�ons.
Ms. Hooke also tes�fied that the ATU had never raised the issue of contrac�ng in
bargaining unit work, nor had the �ming of the contrac�ng out announcement been
challenged. Ms. Hooke explained that since the ATU had raised other issues in the
addendum language on the grievance form, she felt it necessary to address those issues.
Thus, she reminded Mr. Cormier that the ATU had an open invita�on to request relevant
details and that a data bank of informa�on was available for the ATU to review.
9. Ms. Hooke confirmed in her evidence that there were discussions about cos�ngs and the
informa�on provided to the ATU to date. However, it was never specifically alleged that
Metrolinx provided the informa�on in an un�mely manner.
10. In cross-examina�on, Ms. Hooke stated that the number of impacted posi�ons had been
reduced to 36 with 32 employees being directly impacted. She stated that the transi�on
of work to the third-party contract was an�cipated to occur on January 1, 2025.
11. A formal grievance response was issued by Metrolinx on April 5, 2021. In that leter,
Metrolinx denied that the decision to contract out the work violated the collec�ve
agreement. It made specific and detailed reference to LOU #3. It also stated the
following in respect of termina�ons and layoffs:
In par�cular, Ar�cle 27 clearly contemplates that the contrac�ng out of
bargaining unit work can happen, in situa�ons such as Metrolinx is proposing,
where no layoffs or termina�ons have occurred as a direct result of the
contrac�ng out.
12. The grievance was referred to the Grievance Setlement Board and a series of hearing
dates were held. Prior to the first hearing date, the ATU sought produc�on of certain
documents and provided some par�culars of its grievance. It wrote,
This mater relates to the Employer’s decision to improperly contract out
bargaining unit work In the Willowbrook Rail Maintenance Facility and Yard and
Rail Layovers & Outposts (“Willowbrook”). The contrac�ng out includes work
which is "usually and presently performed by members of the Union".
Furthermore, the Employer's “contracted ac�vi�es” are not for "temporary or
short-term specialized work”. This conduct by the Employer is in breach of the
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Collec�ve Agreement, including, but not limited to, Ar�cles 1, 2, 3, 6, 7, 27,
Leter of Agreement #3 and any other ar�cles which may apply.
13. Metrolinx wrote to the ATU on February 15, 2022 advising that it would be arguing that
the grievance was premature since the contrac�ng out had not yet occurred. It then
proposed to adjourn the hearing dates un�l the Summer of 2023 rather than seeking to
have the grievance dismissed.
14. The par�es entered Terms of Reference For Li�ga�on, which generally s�pulated certain
facts (described above) and set out the par�es’ agreement to adjourn the hearing dates
un�l the Summer of 2023. The next hearing date was scheduled for June 30, 2023.
15. The ATU wrote to Metrolinx on June 26, 2023 to “provide provisional Without Prejudice
par�culars”. It advised Metrolinx that it was providing the par�culars despite not being
told which posi�ons were being contracted out nor had it received the requested
produc�on. Metrolinx objected to this characteriza�on at the hearing.
16. In the June leter, the ATU stated that it understood from an April 24, 2023 Labour
Management Mee�ng that On Express was the winning proponent and that 45 posi�ons
at the Willowbrook Yard would be impacted. It also stated that it had been advised by
Metrolinx that impacted bargaining unit members would be transferred to other
posi�ons within Metrolinx or to posi�ons with the contractor. As part of the “Factual
Background”, the ATU characterized its grievance as rela�ng to Metrolinx’s decision to
“improperly contract out and/or contract in bargaining unit work”. It stated that the
“contrac�ng out/in includes work which is "usually and presently performed by
members of the Union". Furthermore, the Employer's “contracted ac�vi�es” are not for
"temporary or short-term specialized work”. The ATU also stated that Metrolinx “…did
not give preference to its own employees and failed to provide all relevant informa�on
with the Union at the appropriate �mes.”
17. A Case Management Hearing was held on June 30, 2023. The par�es agreed to a
schedule for produc�on and par�culars. On July 7, 2023, the ATU provided par�culars of
its grievance to Metrolinx. Metrolinx then wrote to the ATU on July 17, 2023 agreeing to
produce certain documents to the ATU provided it signed confiden�ality agreement.
Metrolinx also requested produc�on of documents from the ATU.
THE PRELIMINARY MOTIONS
18. Metrolinx has three dis�nct preliminary arguments that the par�es addressed in the
hearing.
19. Metrolinx argues that the ATU has improperly expanded the scope of the grievance since
it was filed in March 2021. Specifically, it objects to four issues that the ATU intends to
raise as part of its grievance:
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• That the transfer of work may be a “contrac�ng in” arrangement that violates the
collec�ve agreement;
• That Metrolinx had intended to contract out or contract in the work at a �me
when it commited to the ATU that it would not do so;
• That Metrolinx had failed to share informa�on with the ATU in a �mely manner;
and
• That employees were improperly laid off or had their employment terminated.
20. Metrolinx points to the language of the grievance, the content of the grievance mee�ng
as described by Ms. Hooke, and the par�es’ correspondence to argue that the ATU has
improperly expanded the grievance.
21. Addi�onally, Metrolinx argues that even if the scope of the grievance covered the issues
raised by the ATU, those issues ought to be dismissed on the basis of prematurity. It
argues that the case would be impossible to li�gate as the transfer of work has not yet
occurred. Thus, the addi�onal issues ought to be dismissed.
22. With respect to the issues of layoffs and termina�ons of employment, Metrolinx argues
that Ar�cle 4.5 of the collec�ve agreement precludes the ATU from filing a policy
grievance directly affec�ng an employee which such employee could himself file a
grievance. Thus, the issue of layoffs and termina�ons of employment arising from the
contrac�ng out could only be challenged through an individual grievance and not a
policy grievance.
23. Finally, Metrolinx also raises an estoppel issue. The par�es agreed on the last day of
hearing to postpone final arguments on this issue.
24. The ATU argues that a liberal interpreta�on of the language used in the grievance form
supports the issues it raised in the June and July 2023 correspondence. It argues that it
raised the issues as it became aware of new informa�on disclosed by Metrolinx. At its
most basic descrip�on, the ATU challenges the transfer of bargaining unit work to a
third-party contractor. This issue is apparent from the Ar�cles cited in the grievance and
the general descrip�on it put forward.
25. In response to Metrolinx’s argument that the issues could not be li�gated based on
prematurity, the ATU argues that the contrac�ng out of work has been announced by
Metrolinx and the issues have crystallized. There are sufficient facts, it argues, through
the correspondence, contracts and agreements, as well as the announcements of
Metrolinx’s plans, to support an allega�on that the collec�ve agreement has been
breached.
26. The ATU further argues that the issue of layoffs and termina�ons of employment are not
based in individual circumstances of employees. Rather, it characterizes the issue as
whether it is a breach of Ar�cle 27 to “force individuals to make an elec�on” between
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con�nuing their employment at Metrolinx but in a different capacity or op�ng to work
for the third-party contractor. Thus, the issue as generally described could proceed as a
policy grievance under Ar�cle 4.5.
DECISION
27. The preliminary issues raised by Metrolinx were presented as dis�nct arguments. Thus, I
will deal with each argument separately. In reaching my decision, I have reviewed the
material put before me and the numerous awards cited by the par�es.
Article 4.5 Policy Grievance
28. For the purpose of this analysis, I assume, without making the finding, that the
allega�ons pertaining to the layoffs and termina�on of employment, as alleged by the
ATU, fall within the scope of the grievance. Metrolinx argues that Ar�cle 4.5 of the
collec�ve agreement precludes the ATU from pursuing a policy grievance on a mater
that could be covered by an individual grievance. This provision reads as follows:
4.5(1) Where any difference arises between the Employer and the Union rela�ng
to the interpreta�on, applica�on, administra�on or alleged viola�on of the
agreement, the Union shall be en�tled to file a grievance with Human Resources
Employee Rela�ons, provided it does so within and not a�er fourteen (14)
calendar days from the occurrence or origina�on of the circumstances giving rise
to the grievance. However, it is expressly understood that the provisions of this
paragraph may not be used by the Union to ins�tute a complaint or grievance
directly affec�ng an employee which such employee could himself ins�tute and
the regular Grievance Procedure shall not be thereby by-passed.
29. Metrolinx’s posi�on is that any issue related to the termina�on and layoffs of employees
could be grieved by the employee as an individual grievance. As the Policy grievance
covers the same subject on which an employee could ins�tute an individual grievance,
the allega�ons about termina�ons and lay-offs are precluded by Ar�cle 4.5. Metrolinx
advises that it will not raise a �meliness issue should individual grievances be filed in a
�mely manner from the date of my award or from when the facts transpired.
30. The ATU argues that the issue could be framed as whether it was a viola�on of the
collec�ve agreement “… to force individuals to make the elec�on” between moving
within Metrolinx or to the third-party contractor. It argues that this is an interpreta�on
issue about whether “…an individual could be required to elect to move to the
contractor or move within Metrolinx”. It takes the posi�on that since employees have
not yet been dismissed or laid off, an individual grievance could not yet be filed. Thus,
such a grievance is not precluded by Ar�cle 4.5.
31. There is some inconsistency in the ATU’s posi�on. On the one hand, it argues that there
are sufficient facts to fully li�gate the issues related to contrac�ng out, including the
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impact on the employees. On the other hand, it argues that the facts with respect to
individual employees have not yet crystallized and thus individual grievances could not
be filed.
32. Another difficulty with the ATU’s posi�on is that the descrip�on of the allega�on that it
seeks to make as part of the policy grievance has been stated differently on at least four
occasions. While I understand the ATU is dissa�sfied with the informa�on that has been
shared by Metrolinx, my task at this early stage is to determine whether its allega�on (or
complaint) is precluded by Ar�cle 4.5 of the collec�ve agreement. I will first describe
the four different ways the ATU has described this allega�on.
33. First, the uncontradicted evidence of the grievance mee�ng is that the discussions were
generally about whether employees would lose their employment either through
termina�ons or lay-offs as this was a concern raised by Rob Cormier., ATU Local
President. At the �me of the grievance mee�ng, the par�es were aware that bargaining
unit posi�ons would be eliminated and that the employees’ jobs would be affected.
There is no evidence that the allega�ons by the ATU were focused on an interpreta�ve
issue about whether employees could be forced to make an elec�on between moving
within Metrolinx or the third-party contractor. Rather, Mr. Cormier was genuinely
concerned about the employees’ jobs and raised that issue with Ms. Hooke in the
grievance mee�ng.
34. The second descrip�on is found in the ATU’s June 26, 2023 leter, where it characterized
the issue as follows:
The Employer has advised that impacted bargaining unit members will be
transferred to other posi�ons within Metrolinx and/or to posi�ons with the 3rd
party contractor. This cons�tutes a lay-off and/or termina�on of employment
pursuant to the Collec�ve Agreement.
35. The point made by the ATU is about the impact of the transfer to other posi�ons within
Metrolinx or to the third-party contractor. This leter iden�fies that it is “Without
Prejudice”. I was given no explana�on about what was meant by this, nor was I told
what was meant by the opening statement of the leter that iden�fies it as “provisional
Without Prejudice par�culars”. Regardless of these references to “without prejudice”,
the issue about what the ATU seeks to pursue as part of the grievance is squarely before
me as a jurisdic�onal issue. Thus, I must consider its ar�cula�on of the issue.
36. The allega�on was refined for a third �me in a July 7, 2023 email where the ATU
described the allega�on as follows:
Ar�cle 27
Pursuant to Ar�cle 27, the involuntary transfer of bargaining unit members to
other loca�ons cons�tutes a lay-off. Furthermore, if bargaining unit members
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cease their employment with Metrolinx and commence employment with the
third party contractor, this cons�tutes the termina�on of their employment.
37. This allega�on is that a forced transfer to other loca�ons is a layoff or that if employees
cease working for Metrolinx and start working for the contractor that it is a termina�on
of employment. The email uses the phrase “Without Prejudice”, but again it is an issue
that I have been asked to consider as part of the jurisdic�onal issue.
38. The fourth itera�on of the allega�on was made during the hearing where counsel
described the issue as “an interpreta�on issue” to determine whether “It is a breach [of
Ar�cle 27] to force individuals to make the elec�on”. The issue as described by ATU
counsel is whether “…an individual can be required to elect to move to the contractor or
move within Metrolinx”.
39. I have highlighted these itera�ons of the allega�on because I must determine whether
the Policy Grievance is being used by the ATU to “ins�tute a complaint or grievance
directly affec�ng an employee which such employee could himself ins�tute”. The
allega�on, as may be summarized from the various itera�ons, is that the employees
have either been laid off or their employment terminated because of the contrac�ng out
of work and that Metrolinx is precluded from compelling the individually affected
employees to make an elec�on.
40. In considering this issue, I have carefully reviewed the award of Arbitrator Randall in
Fishercast Global Corp. v. I.U.P.D., 2008 CarswellOnt 8475. That case dealt with a
grievance challenging the contrac�ng out of bargaining unit work. The collec�ve
agreement contained similar language that precluded the Union from filing a policy
grievance. It read, in part, as follows:
However, it is expressly understood that the provisions of this Ar�cle may not be
used by the Union to ins�tute a Grievance or complaint directly affec�ng an
employee which he/she could have ins�tuted himself/herself and the regular
Grievance Procedure shall not be thereby by-passed.
41. In dismissing the grievance, Arbitrator Randall reasoned as follows:
The only test, on this language, is a fact-finding one. Were there iden�fiable
employees, directly affected by the employer’s ac�on, who could have filed a
grievance, at the �me the policy grievance was filed? The answer to that, on the
facts before me and despite Ms. Eliot’s best efforts to convince me otherwise, is
an unequivocal ‘yes’. The Employer ac�on which leads to the policy grievance is a
series of individual lay-offs. Each employee, who received a lay-off no�ce, 17 in
all, was directly affected by the Employer’s ac�on, and could have challenged
same on the basis that there was subsis�ng bargaining unit work, contracted out,
which they could perform.
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42. The reasoning was later followed by Arbitrator Davie in Fishercast Global Corp. v.
I.U.P.D. (unreported) June 2, 2008 (Davie).
43. In the circumstances before me, there are iden�fiable employees who are directly
affected by the contrac�ng out of work. I have been advised that those employees have
been made offers by Metrolinx to either elect to remain at Metrolinx or move to the
third-party contractor. Those are individual employees directly affected by the
employer’s ac�ons. The ATU’s allega�ons about layoffs and termina�ons of employment
are complaints or grievances about directly affected employees (who have been told to
make an elec�on) “…which such employee could himself ins�tute”.
44. Even taking the ATU’s most recent descrip�on of the allega�on – characterized as an
interpreta�ve issue about whether Metrolinx can compel the employees to make an
elec�on – it is about specific employees who have been issued individual leters with
respect to making an elec�on. Those employees are directly affected and can file a
grievance.
45. Thus, the ATU is precluded by Ar�cle 4.5 of the collec�ve agreement from pursuing
these allega�ons as part of this Policy Grievance.
46. I will now turn to Metrolinx’s preliminary argument about the scope of the grievance.
Given my conclusion regarding the allega�ons about layoffs and termina�ons of
employment, it is not necessary for me to consider whether those allega�ons fall within
the scope of the grievance.
Scope of the Grievance
47. There is very litle dispute about the legal principles that must be applied to determine
whether I have jurisdic�on to arbitrate the issues raised by the ATU. Arbitrators have
generally held that grievances are to be liberally construed and that a technicality should
not impede the adjudica�on of the real issue between the par�es. Arbitrators have
avoided reading grievances through a legalis�c lens as the grievance procedure is not
meant to be a judicial proceeding.
48. It has also been held that the grievance process must be used to address actual and
substan�ve workplace disputes, which necessitates some precision in describing the
dispute. The par�es need to understand the nature of the dispute and the remedy
sought to facilitate a fair and efficient process. Arbitrators have not permited a party to
subs�tute or add on to disputes that are different from the original grievance that was
filed. As described by Arbitrator Lynk in Ontario (Ministry of Transportation) and OPSEU
(Labanowicz), 2014 CarswellOnt 12578 (Lynk),
The grievance process is not so elas�c so as to permit the joining of issues that
are truly unconnected - measured by its connectedness in fact, in substance and
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in �me - with the reasonably understood meaning and coverage of the dra�ed
grievance language.
49. This same point was made in by Arbitrator Burket in Fanshawe College v. O.P.S.E.U.
(2002), 113 L.A.C. (4th) 328 (Ont. Arb.), at 336:
The Union is not permited at a later date, just prior to arbitra�on, to completely
changes horses in midstream and raise issues not contemplated by the grievance
which are not consistent with the language of the grievance, which cannot be
reasonably be included in the grievance and with the language of the collec�ve
agreement and which are en�rely separate and dis�nct from the subject of the
original grievance.
50. In Liquid Carbonic Inc. v. U.S.W.A. (1992), 25 L.A.C. (4th) 144 (Ont. Arb.) (Stanley), the
arbitrator wrote at p. 147:
The whole process of grievance arbitra�on, and grievance procedure, is designed
to permit the par�es at the earlier stages to resolve the dispute between
themselves. Hence, collec�ve agreements invariably contain grievance procedure
provisions so that grievances are funneled to an arbitra�on board only a�er the
par�es have had a chance to resolve the mater. It is our view that the comments
of Professor Laskin and the decision in the Re Blouin Drywall case atempt to
accommodate both values. If the issue raised at the arbitra�on hearing is in fact
part of the original grievance, a board of arbitra�on should not deny itself
jurisdic�on based on a technical objec�on as to the scope of the original
grievance. To do so would deny the value of flexibility and would be to compel
the par�es to dra� their grievances with a nicety of pleadings. On the other
hand, if the issue raised by one of the par�es is not inherent in the original
grievance, for the board to permit the party to raise that issue as part of the
original grievance would be to deny the par�es the benefit of the grievance
procedure in an atempt to resolve the issue between themselves. In fact, it
would be to permit one party to subs�tute a new grievance for the original
grievance.
51. In balancing these principles, arbitrators have asked whether the issues raised are an
inherent part of the grievance. This is an objec�ve inquiry. Again, in Fanshawe College,
Arbitrator Burket described the analysis as follows,
10. The aggrieved party is entitled to rely on the grievance as filed, albeit read
in its broadest terms, and to govern itself accordingly with respect to settlement
discussion, referral to arbitration and preparation for arbitration.
11. The acid test is whether an issue not encompassed within the grievance that
requires the calling of evidence and the making of legal submissions has been
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raised. Without restricting the authority of an arbitrator to fashion an
appropriate remedy at the conclusion of a case, which may or may not differ
from the remedy sought, it is the statement of grievance read in conjunction
with the remedy sought that defines the essential nature of the grievance and
the issues that have been raised by the grievance, thereby allowing an arbitrator
to decide if a grievance has been improperly expanded.
52. I will now turn to consider whether the issues raised by the ATU that are objected to by
Metrolinx are an inherent part of the grievance or whether they truly are different.
53. The grievance was filed in March 2021 following Metrolinx’s announcement to contract
out work at the Willowbrook Yard. In determining the scope of the grievance, I start
with the language used in the grievance. The grievance iden�fies six ar�cles of the
collec�ve agreement, a leter of agreement and the customary “…any other ar�cles or
employment related statutes that may apply”. Those ar�cles are �tled Purpose,
Recogni�on, Check Off Dues, Management’s Rights, Seniority, and Employment Stability.
54. The Leter of Agreement #3, �tled “Contrac�ng Out” commits Metrolinx to certain
obliga�ons that include, among other things, no�fying the ATU before finalizing its
decision to contract out work. The Leter of Agreement #3 contains a process to
exchange informa�on and proposals.
55. The Grievance Statement alleges that “…the Employer improperly contracted out
bargaining unit work in the Willowbrook Rail Maintenance Facility and Yard and Rail
Layovers & Outposts”. It con�nues to trace the language of Leter of Agreement #3. The
ATU argues that this statement is broad enough to put Metrolinx on no�ce that it is
alleging improper “contrac�ng in” as well as contrac�ng out. This is a compelling
argument. However, as will be described later, there are other persuasive arguments to
reach the same conclusion.
56. Notably, the grievance also contains a statement that the ATU reserved its right to file
further grievances for specific allega�ons (set out above). This is a peculiar statement
for a grievance form that I have not seen in my experience. Ms. Hooke tes�fied that it
was not a usual statement on grievances filed by the ATU. In my view, it does not add
clarity to the grievance. However, I do not read the language to detract from the thrust
of the grievance which clearly iden�fies the Ar�cles that are alleged to have been
violated and a statement of the alleged viola�on. The ATU’s statement that it might file
future grievances does not, in my view, limit or restrict the language used to describe
the grievance itself, that being a challenge to Metrolinx’s decision to contract out the
work.
57. Unions are not required to ar�culate the full par�culars of the grievance in the
Grievance Form. Rather, as described by the Court of Appeal in Blouin Drywall
Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local
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2486 (1975), 8 O.R. (2d) 103 (Ont. C.A.), the dispute must be clearly stated and liberally
construed so that the real complaint is dealt with. The Court stated,
No doubt it is the prac�ce that grievances be submited in wri�ng and that the
dispute be clearly stated, but these cases should not be won or lost on the
technicality of form, rather than on the merits as provided in the contract and so
the dispute may be finally and fairly resolved with simplicity and dispatch. ...
Certainly, the board is bound by the grievance before it but the grievance should
be liberally construed so that the real complaint is dealt with and the appropriate
remedy provided to give effect to the agreement provisions ...
58. What is the real complaint in the grievance before me? The ATU challenges Metrolinx’s
decision to transfer the work out of the bargaining unit. This is apparent from reading
the language used in the grievance. The par�culars from the ATU in the June and July
correspondence that spawned Metrolinx’s preliminary mo�on are clearly related and
arise out of the central allega�on being made by the ATU. An allega�on of improper
“contrac�ng in” may be a different legal characteriza�on of contrac�ng out, but it is
clearly part of the same complaint about the transfer of bargaining unit work.
59. While the ATU may not have expressly pled that the arrangement is “contrac�ng in” or
that the contractor is the true employer, its central allega�on about improper transfer of
work out of the bargaining unit is broad enough to incorporate such an issue. A similar
issue arose in Imperial Oil, Products and Chemicals Division Nanticoke Refinery v. Unifor
Local 900 (Manpower Grievance) (2013), 238 L.A.C. (4th) 408 (Goodfellow). In that case,
Arbitrator Goodfellow held that the union was not required to ar�culate every legal
argument available to it. He reasoned:
11 In so stating, I do not mean to suggest that the Employer should have,
or even could have, known from the face of the grievance that the
complaint would ultimately take the shape of contracting in, rather than
contracting out or "manpower utilization" (whatever that may be). But that
is not the point. The point is that it is not beyond the scope of the tersely
worded grievance nor does it represent a change of grounds. And, while a
review of the parties' notes of the Step 2 meeting, where the grievance
was first canvassed, reveals that the focus of the discussions was on
staffing levels, etc. (to what precise contractual end, I remain unclear),
there is absolutely no doubt that the Union raised the very issue that it is
now seeking to pursue. To require the Union to do more than that would,
in my view, be unduly technical and contrary to the interests of sound
labour relations. It is the kind of detail or precision that is not demanded by
Article 6.01 and, in my opinion, would only serve to frustrate, rather than
advance, the dispute resolution process.
60. I agree with Arbitrator Goodfellow’s reasoning and adopt it in the case before me. The
ATU went far enough in its grievance to put Metrolinx on no�ce that it was challenging
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the transfer of work. To require the ATU to ar�culate its legal argument about whether
it is a “contrac�ng in” situa�on is beyond what the arbitral jurisprudence has required of
aggrieved par�es.
61. Similarly, the �ming of Metrolinx’s decision and the sharing of informa�on are about the
same general complaint and clearly fall within the scope of the language (including the
cited Ar�cles and Leter of Understanding #3) of the grievance. This is not “changing
horses” or trying to string together unconnected complaints, adop�ng the phrases used
in the jurisprudence. Rather, this is part of the inherent grievance.
62. These issues all fit squarely within the remedies being sought by the ATU as iden�fied in
the grievance (listed above). The ATU is not seeking a new remedy nor is it seeking to
amend its listed remedies.
63. I have also considered the contents of the grievance mee�ngs as described by Ms.
Hooke. In my view, those discussions were broad enough to encompass the issues that
the ATU seeks to pursue at arbitra�on. Metrolinx has emphasized that the issue of
“contrac�ng in” fundamentally changes the legal issue, the evidence needed to be called
and the applicable remedies. In my view, Metrolinx has overstated this argument. It
would be immaterial if the ATU said in the grievance mee�ng “we think the third-party
contractor is the real employer” as opposed to challenging the transfer of work to a
third-party contractor. Metrolinx was always aware of the real issue in dispute: the loss
of bargaining unit work. Whether the transfer of work is ul�mately found to be
“contrac�ng out” or “contrac�ng in” it is unlikely to impact the final disposi�on of the
grievance as the real issue has not changed. To be clear, this is not a True Employer case
that is o�en li�gated at the Ontario Labour Rela�ons Board to determine bargaining
rights in a cer�fica�on applica�on. The case is generally about whether the transfer of
work is permissible under the collec�ve agreement.
64. Ms. Hooke also confirmed that the par�es discussed the list of items that the ATU said
that it might file a grievance in the future, on a without prejudice basis. In fairness, Ms.
Hooke was doing what a good labour rela�ons expert would do in the circumstances.
She was, as she tes�fied, trying to avoid grievances and conflicts by addressing
an�cipated issues with the union. That makes good sense in the circumstances. I am
simply unable to accept that Metrolinx was unaware that the ATU may pursue these
challenges – all of which arise out of the contrac�ng out of bargaining unit work – at
arbitra�on.
65. In reaching this conclusion, I have also examined the correspondence from the ATU
when the grievance was filed (the March 10, 2021 leter) as well as the grievance
response from Metrolinx (dated April 5, 2021). The par�es referred to the �ming of the
announcement, the quality of informa�on provided by Metrolinx to ATU, and their
respec�ve interpreta�ons of the collec�ve agreement about contrac�ng out of work.
These are all part of the broader issues being pursued by the ATU, none of which should
be a surprise to Metrolinx.
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66. Thus, I conclude that the scope of the grievance properly includes the issues raised by
the ATU at arbitra�on. Generally, that can be described as alleging that the transfer of
work is contrac�ng in, the �ming of Metrolinx’s decision, and the sharing of informa�on.
Prematurity
67. Metrolinx argued that if the specific allega�ons fell within the scope of the grievance
that I should dismiss them on the basis of prematurity. Those allega�ons are as follows:
• that the transfer of work is “contrac�ng in”
• that employees have been improperly terminated or laid off
68. The issue about termina�on of employment or layoffs is addressed earlier in this
decision. I determined the ATU is precluded from pursuing these allega�ons pursuant to
Ar�cle 4.5 of the collec�ve agreement. Thus, I am le� to determine whether the ATU’s
posi�on about “contrac�ng in” is premature.
69. Metrolinx argues that since the transfer of work has not yet occurred, it is not possible
for the li�ga�on to proceed. In other words, the facts have not yet transpired and thus
the issues have not crystallized.
70. The issue between these par�es is the transfer of work and the impact on the posi�ons.
The process of transferring the work out of the bargaining unit is par�cularly complex in
this case and is an�cipated by Metrolinx to be a long process. However, the process has
commenced. The contractor has been secured. The work has, for the most part, been
iden�fied. The employees have been given no�ce and op�ons. While the contractor
may not have taken over the work yet, there is some understanding of what that will
look like as it con�nues to evolve. There have already been several hearing dates,
exchanges of produc�on, a confiden�ality agreement to protect commercially sensi�ve
informa�on, and Terms of Reference for Li�ga�on. In my view, the par�es have come
too far in the li�ga�on process to now say that a dis�nct legal argument is premature.
These par�es have commenced the arbitra�on process on the issue of contrac�ng out
work at the Willowbrook Yard. In my view, there is enough known about Metrolinx’s
plans and the ac�ons that have occurred thus far to li�gate the issue. It is �me for that
li�ga�on to get underway.
71. The cases cited by Metrolinx about prematurity are dis�nguishable both on their facts
and the issues presented in those cases.
72. In Tempo Building Supplies (McPhillips), the grievor, who was off work and in receipt of
Workers’ Compensa�on benefits, understood that his employment had been terminated
following an announcement to contract out work that he normally performed. The
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grievance specifically alleged that the contrac�ng out had “cause[d] me to lose my job”.
At the arbitra�on hearing, the employer confirmed that the grievor’s employment had
not been terminated. Moreover, the union did not challenge the employer’s decision to
contract out the work. On that basis, the arbitra�on panel concluded that the grievance
was premature. It reasoned as follows:
However, once the situa�on was clarified at the hearing by the Employer's
statement that there had been no termina�on, the grievance then became
premature. This is not a Union policy grievance based on the inten�on to
contract out as set out in the Employer's later of January 27. In fact, the Union
expressly stated to this board that there was no excep�on being taken to the
contrac�ng out at this point in �me. This is an individual grievance dealing with
the rights of Mr. Sahota. Those rights will only be open to test at the �me at
which Mr. Sahota indicates whether he is able to return to work.
73. Similarly, the issue in Beachvilime Ltd. v. E.C.W.U., Local 3264, 1989 CarswellOnt 3877
(Hinnegan) was whether the grievor was at risk of layoff in the future because he
refused to obtain the necessary welding requirements. The employer, in a
memorandum to employees, stated that such employees may be laid off in favour of
“…persons prepared to qualify or qualified at that �me.” As the grievor had not been
told he would be laid off, the arbitrator held that “…simply an�cipa�ng that possibility, is
premature”.
74. The facts in Beachvilime Ltd. are quite different than the circumstances before me. Here,
Metrolinx has announced that bargaining unit work will be contracted out and that this
will impact the employees and their jobs. The number has fluctuated, but at the �me of
Metrolinx’s preliminary mo�on, there were 32 individuals impacted and a total of 36
posi�ons to be lost. I was also advised that the process of offering these employees the
op�on of moving to the third-party contractor or remaining at Metrolinx had
commenced. Thus, there is a very real and �mely issue to be li�gated.
75. The legal issue in Electrical Contractors Association v I.B.E.W., [1990] O.L.R.B. Rep. 283 is
par�cularly unique and shares no similarity to the issues before me. Briefly, the
employers referred its grievance to the Ontario Labour Rela�ons Board (“OLRB”) to seek
an advanced ruling on the calcula�on (or off-set) of the deduc�ons under the not-yet
enacted Employer Health Tax Act, 1989. It was essen�ally a request from the employers
for an advisory opinion from the OLRB before the legisla�on had been enacted and
before any deduc�ons had been made. Thus, the OLRB ruled that there was no
difference to li�gate and the grievance was premature. This is very different from the
circumstances before me.
76. These cases are dis�nguishable and of limited value to my analysis.
77. For these reasons, Metrolinx’s argument that the “contrac�ng in” issue should be
dismissed as premature is denied.
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SUMMARY
78. For the foregoing reasons, I have determined that Ar�cle 4.5 precludes the ATU from
pursuing the allega�ons with respect to lay-offs and termina�ons of employment as a
Policy Grievance. Those allega�ons can be pursued as individual grievances under the
collec�ve agreement. The allega�ons with respect to contrac�ng in, the �ming of the
announcement, and the informa�on provided to the ATU fall within the scope of the
grievance and may be pursued. Metrolinx’s prematurity argument is dismissed.
79. The preliminary mo�on is upheld, in part.
80. This mater is scheduled to con�nue on December 12, 2023.
Dated at Toronto, Ontario this 30th day of November 2023.
“Matthew R. Wilson”
Matthew R. Wilson, Chair