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Home My WebLink About2019-1113.Union.24-02-28 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# 2019-1113; 2019-1634; 2019-1635; 2019-1636; 2019-1637; 2019-1638 UNION# 2019-0999-0009; 2019-0999-0010; 2019-0999-0011; 2019-0999-0012; 2019-0999-0013; 2019-0999-0014 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Joseph D. Carrier Arbitrator FOR THE UNION Laura Johnson Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Andrew Cogswell Liquor Control Board of Ontario Counsel HEARING January 30, 2024 -2 - Decision [1] On or about June 5, 2019 the Ontario Provincial Government announced its intention to have the Liquor Control Board of Ontario increase the number of its agency outlets across the Province. In response to that announcement the Union filed a series of 6 grievances on or about June 19, 2019 alleging, amongst other things, that the announcement itself was “without proper consultation with the Union, in violation of the collective agreement…..and the Letters of Agreement…”. [2] The Employer, represented by Andrew Cogswell, advanced two preliminary motions in response to those 6 grievances. In the first motion he argued that the grievances were all premature in that no action had yet been taken by the Employer which, at the stage the grievance was filed, could be said to have violated any terms of the Collective Agreement or Letters of Understanding relating to the engagement of agency outlets. [3] Secondly and in the alternative, if any one or more of the grievances survive the initial motion, it is the Employer’s position that the grievances and allegations including the particulars provided by the Union to date are so lacking in detail as to the manner in which any provision or letter has been violated that they ought to be struck having raised no prima facie case. Failing that, fulsome particulars should be provided. [4] On behalf of the Union, Laura Johnson took the position that the grievances are not premature but are anticipatory in the sense that the Employer’s conduct in implementing the plan announced by the Province may result in a breach of the Collective Agreement and/or the relevant Letters of Understanding. [5] With respect to the alleged inadequacy of particulars it is the Union’s position that those provided to date are sufficient on a preliminary basis. Furthermore, the information necessary to identify the necessary details are within the knowledge of the Employer and upon receipt of requested productions, the Union would be -3 - in a position to provide the normal details as to the manner in which the employer has violated the parties’ contract and/or Letters of Agreement. [6] At the conclusion of her submissions Ms. Johnson emphasized that the parties were about to enter into negotiations for the renewal of the then current collective agreement which was set to expire on March 31, 2024. In the circumstances and in the interest of having an answer to the motions raised by the Employer, she requested that a bottom line decision be released in writing as soon as practicable following the hearing of January 30th. Since there was no challenge by the Employer to that request, what follows is my brief decision on the employer’s Motions. The Decision and Brief Discussion [7] I have considered the documents introduced including the Provincial announcement, the 6 grievances, the Collective Agreement provisions and relevant Letters of Agreement between the parties as well as the submissions of counsel and the Authorities they refer to. [8] Having taken all into consideration I am satisfied for the relatively brief reasons which follow that all grievances are indeed premature and should be dismissed: 1. At the time the grievances were filed on June 19, 2019 following the Provincial announcement of the intention to increase agency outlets throughout the Province, no step whatsoever had been taken to implement any such plan. Indeed it was only a stated intention with no details as to specific areas or outlets which might be engaged and/or which, if any, existing LCBO retail stores or employees within those stores might be affected. 2. The Collective Agreement itself and the Letters of Agreement specifically recognize and allow for the opening or use by the LCBO of agency outlets subject, of course, to various protections for existing LCBO stores and bargaining unit employees. 3. Regardless of those protections, the engagement of an agency outlet does not in and of itself constitute a breach of the Collective -4 - Agreement or any of the Letters relevant to such outlets. Of those letters the closest to requiring Notice to the Union is that entitled Repatriation which does have a provision calling for the Employer to “meet and discuss with the Union the opening of any new agency store, which LCBO store may be affected by the opening” etc. The provision presupposes that a new agency store has been identified and chosen for opening and that the choice may impact upon an existing LCBO store and/or employees. No such choice had been made at the time of the announcement. 4. Accordingly, the announcement that an agency outlet and/or a multitude of them will be opened in the future cannot in and of itself constitute a violation. 5. If the very opening or engagement of an agency store or outlet was in itself prohibited by the terms of the parties’ agreements, then, a grievance of an announcement to open such a store by the Employer could easily be characterized as an anticipatory grievance and fall within that line of Authorities referred to by Ms. Johnson in her argument. (See for instance: Fleet Industries Ltd. v. I.A.M. & A.W., Lodge 171, 2002 CarswellOnt 5241, 12 L.A.C. (4th) 120, 71 C.L.A.S. 191 (Luborsky). In the Fleet Industries decision relied on by Ms. Johnson, Arbitrator Luborsky referring to several earlier decisions summarized his view of those Authorities as follows at paragraph 14: Nevertheless, the principles from the Beachvilime and Stelco decisions, supra, are applicable to the instant grievances because they indicate that when deciding whether a grievance ought to be dismissed on a preliminary motion due to prematurity, the test is whether an arguable violation of the collective agreement has been demonstrated, which will depend upon the facts in the face of the language contained in the agreement at the time of the alleged breach. Also, a grievance brought in anticipation of a breach of the collective agreement, will not by reason of its anticipatory nature alone render the grievance invalid; however, such grievances will be considered premature unless there is some act suggesting that a breach of the collective agreement may occur. The standards of “arguable violation”, and what “may occur” in cases of anticipatory grievances, set relatively low thresholds. Such low thresholds ensure that no-one’s potential rights are prejudiced by a preliminary determination that a grievance is premature, except where it is clear on the collective agreement language and the accepted facts that the grievance has no arguable chance of success for that reason. -5 - Even taking into consideration the broad scope of anticipatory breach given to it by Arbitrator Luborsky, the announcement of the Province here cannot in and of itself be characterized as “some act suggesting that a breach of the Collective Agreement may occur”. While the Employer in implementing the announced intention to open such outlets, may violate its obligations pursuant to one or more of the Letters of Understanding, that is not the case at hand. Here, there is no announced intention to disregard the Employer’s obligations pursuant to those provisions while pursuing the Provincial announcement. In the course of time it may be arguable that a breach of one or more of the employer’s obligations can be anticipated once it has started the process of selecting and opening agency outlets. However, at the time of the provincial announcement, any such alleged breach is speculative rather than anticipatory. Simply put, to speculate as to which of those various obligations, restrictions or provisions might later be breached would be beyond anticipatory. The allegation in this case is based on mere speculation that a breach of some unidentified Agency provision(s) may take place at some future time. That allegation is unsubstantiated and premature at best. [9] In all the circumstances, it is my view that the 6 grievances are premature and must be dismissed. [10] In view of my conclusion here with regard to the premature nature of the instant 6 grievances, it is unnecessary to deal with the alternative Motions relating to the lack of particularity concerning the allegations themselves. [11] To conclude, I find that the 6 grievances are premature and are hereby dismissed. Dated at Toronto, Ontario this 28th day of February 2024. “Joseph D. Carrier” Joseph D. Carrier, Arbitrator