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Home My WebLink About2023-01511.Policy.23-12-29 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# 2023-01511 UNION# 23-28 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Policy) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Kelly Waddingham Arbitrator FOR THE UNION Alex Hunsberger Canadian Union of Public Employees - Local 1750 CUPE National Representative FOR THE EMPLOYER Ron LeClair LeClair and Associates Counsel HEARING December 6, 2023 -2 - Decision [1] This is a grievance filed by the Ontario Compensation Employees Union, CUPE Local 1750 (the “OCEU” or the “Union) alleging that the Workplace Safety and Insurance Board (the “WSIB” or the “Employer”) failed to implement the Collective Agreement, and provide “changed wage rates and/or benefits” in a timely manner. The Collective Agreement and certain wage rates and benefits were to be effective “[the] date of ratification”. The parties disagree as to the date of ratification. The OCEU contends that the date of ratification is the date the new Collective Agreement was ratified by the Union’s membership (June 22, 2023). The WSIB contends that as the Collective Agreement had to be approved by the Treasury Board Secretariat (the “TBS”) as well as by the parties, the ratification date is July 26, 2023. [NOTE: “Treasury Board” and “Treasury Board Secretariat” were used interchangeably in arguing the motion described below, despite the fact that they are different entities. For the purposes of this decision, I will only distinguish between the two where the distinction is clear in a party’s argument.] [2] This award deals with a preliminary motion brought by the WSIB challenging my jurisdiction to decide the grievance. The WSIB asserts that the question of whether the TBS has the authority to require TBS ratification of Crown agency collective agreements is outside my jurisdiction as an arbitrator. The WSIB maintains that the question of TBS authority is not a dispute that arises out of the terms of the Collective Agreement, and does not involve the interpretation of an employment- related statute. The OCEU opposes the motion. It maintains that as the dispute between the parties concerns the interpretation of a term used in the Collective Agreement (including Memoranda of Settlement referred to below), it falls squarely within my jurisdiction. [3] The essential facts underlying the grievance are not in dispute. The OCEU and the WSIB have a mature bargaining relationship. Following the most recent negotiations, the OCEU and the WSIB signed Memoranda of Settlement on May 30 and June 2, 2023 for a collective agreement having a term of May 1, 2023 to April 30, 2025. The Memoranda of Settlement included an agreement that the amendments to the (existing) Collective Agreement would be effective “the date of ratification”, except as provided otherwise under the terms of the Memoranda. The Collective Agreement was ratified by the WSIB’s Board of Directors on June 9, 2023, and by members of the OCEU on June 22, 2023. The Treasury Board / Management Board of Cabinet approved the Collective Agreement on July 26, 2023. Preliminary Argument of the WSIB [4] As noted above, the WSIB’s position on the merits of the grievance is that the “date of ratification” referred to in the Memoranda is July 26, 2023, the date the TBS approved (or “ratified”) the Collective Agreement. It contends that I do not have the authority to determine otherwise. Its preliminary objection flows out of the latter proposition. -3 - [5] The WSIB submits that the TBS’s authority to establish a requirement that it ratify the collective agreements of Crown agencies flows out of two statutes, namely the Management Board of Cabinet Act, R.S.O. 1990, Chapter M.1, and the Financial Administration Act, R.S.O. 1990, Chapter F.12. The WSIB asserts that as neither Act is an “employment-related statute”, an arbitrator does not have jurisdiction to interpret them for the purpose of determining whether or not the TBS has authority to establish such a requirement. Thus, the WSIB contends, an arbitrator does not have jurisdiction to interpret the statutes for the purpose of establishing a ratification date that is different than the date a collective agreement is ratified by the TBS. The WSIB asserts that, given this situation, there is no reason to allow the case to proceed to a hearing on the merits. [6] In support of its position on the motion, the WSIB relies upon: Rouge Valley Health System v Ontario Nurses’ Association, 2013 CanLII 8011 (ON LA); and, University of Guelph v University of Guelph Faculty Association, 2023 CanLII 72681 (ON LA). The OCEU’s Response to the Preliminary Argument [7] The OCEU asserts that the central issue in the grievance is the meaning of the phrase, “date of ratification”, a term that appears frequently in the Collective Agreement (which includes the two Memoranda of Settlement, and the 2023-2025 Collective Agreement itself). It points out that, according to the terms of the Collective Agreement, many of the enhanced benefits and entitlements negotiated in the course of bargaining are effective “[the] date of ratification”. The Union submits that an arbitrator’s jurisdiction is derived from the collective agreement, and that the arbitrator has exclusive jurisdiction to interpret the language of the collective agreement (citing Weber v. Ontario Hydro, 1995 CanLII 108 (SCC)). In the instant case, it says, the meaning of the phrase "date of ratification" – as it appears in the Collective Agreement – is entirely within my jurisdiction to determine. [8] The OCEU submits that the WSIB's assertion that TBS (or Cabinet) ratification was required in order to effect the Collective Agreement is a defense to the grievance, rather than the basis for a preliminary motion to dismiss it. The issue of the Treasury Board’s authority to mandate ratification of the Collective Agreement, the Union says, pertains to the merits of the grievance, and not to my jurisdiction. The Union contends that the WSIB has not pointed to any statutory provision which provides that – despite the operation of Labour Relations Act – no collective agreement of a Crown agency shall be deemed ratified until it is approved by Cabinet. The OCEU asserts, further, that nothing put forward by the WSIB in support of its position presupposes that it would win this case. [9] In addition to the above-cited decision, the OCEU relies upon the following: USW District 6 v Occupational Health Clinics for Ontario Workers, 2011 CarswellOnt 8278, 107 C.L.A.S. 281, 211 L.A.C. (4th) 163 (Herman); Integration Communautaire Cochrane Community Living v OPSEU Local 641, 2000 CarswellOnt 5890, 59 C.L.A.S. 352, 87 L.A.C. (4th) 161 (Randall); Dominion Glass Co. v UGCW Local 246, 1976 CarswellOnt 1498, 13 L.A.C. (2d) 362 (McCollough); -4 - and, Allpark/Metropolitan Parking Inc. and Hospitality & Service Trades Union, Local 261, Re, 2007 CarswellOnt 10548, [2007] O.L.A.A. No. 215, 89 C.L.A.S. 211 (Chodos). The WSIB’s Reply [10] The WSIB asserts that determining the instant case is not a simple matter of “contract interpretation”. It maintains that the phrase “date of ratification” cannot be interpreted without considering the question of the Treasury Board Secretariat’s authority to ratify the Collective Agreement. The extent of the TBS’s statutory authority, the WSIB says, is not a question that lies within the jurisdiction of an arbitrator to determine. The WSIB insists that this is an issue of my authority to determine the grievance, and not one pertaining to the merits of the grievance. Analysis [11] In order to determine the motion, it is critical that the analysis focus squarely on the issue of my jurisdiction, and not stray into the merits of the grievance. [12] The grievance alleges that the WSIB, without justification, “refused to implement the collective agreement” until it was approved by the Treasury Board, and “failed to provide changed wage rates and/or benefits” prior to July 27, 2013 – the date on which the parties were notified that “the new collective agreement had been approved”. The May 30 and June 2 Memoranda of Settlement specified that amendments to the Collective Agreement, and certain wage and benefits provisions were to be effective “[the] date of ratification”. The grievance thus turns on the meaning of the phrase, “date of ratification”. If the date of ratification is the date adopted by the WSIB, the grievance will be dismissed. If the date of ratification is the date asserted by the Union, the grievance will be upheld. [13] Section 48(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Schedule A requires all collective agreements executed in the province to contain an “arbitration clause”. Section 48(1) provides: Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable. The above provision is the source of arbitrators’ exclusive jurisdiction to determine all matters relating to the interpretation, application, administration or alleged violation of a collective agreement (see Weber, supra, at paras. 45 and 58). [14] The instant grievance clearly concerns the interpretation, application and/or administration of the Collective Agreement (which I take to include the Memoranda of Settlement; see Integration Communautaire Cochrane Community Living, supra, at pp. 166-169). At the heart of the dispute is the interpretation to be given to the phrase “date of ratification”, as it appears in the Collective Agreement. The -5 - dispute is not, as in University of Guelph, supra, about the interpretation of a non- employment-related statute. It also is not, as in Rouge Valley Health System, supra, about matters that “do not engage the rights and obligations of the parties found expressly or by inference in the Collective Agreement” (see para. 73). It is, first and foremost, a dispute about the words used in a collective agreement. [15] I therefore find that I have jurisdiction to determine the merits of the grievance. The preliminary motion is dismissed. Nothing said in this decision means that I have decided the ultimate outcome of the Employer’s response/defence to the grievance. That will be determined in the next stage of the hearing. [16] The hearing shall be convened on February 15, 2024 to address the merits of the grievance. Dated at Toronto, Ontario this 29th day of December 2023. “Kelly Waddingham” Kelly Waddingham, Arbitrator