HomeMy WebLinkAbout1984-1083.McGregor.86-08-06Between
Before:
For the Griever:
For the Employer:
1083/84
IN THE MATTER OF AN ARBITRATION
- Under -
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (G. McGregor)
- and -
The Crown in Right of Ontario
(Ministry of Transportation and
Communication)
M.R. Gorsky
I. Thomson
G.A. Peckham
P.A. Sheppard
Barrister h Solicitor
D.W. Brown, Q.C.
Counsel
Crown Law OEfice Civil
Ministry of the Attorney General
Griever
Employer
Vice-Chairman
Member
Member
Hearing: May 30, 1986
DECISION
The grievance, filed September 24, 1984, by the
Grievor, who was, at all material times, a Highway Construction
Inspector II, employed by the Ministry, is as follows:
"I grieve that I have been dealt with in a manner that contravene (sic) Grievance Settlement Board Awards #92-84 and 93-84 with respect to the Collective Agreement Articles #17, 22, & 23 where applicable but not exclusively."
The Grievor required the following settlement:
"That I be dealt with in a manner that is and (sic) keeping with G.S.B. Award #92-84 & 93-84 and that I be compensated in accordance with the above Award where applicable."
This is merely one of a long line of cases involving
payment of an employee's expenses for the use of a personal
vehicle in travelling to work. Entitlement to such allowances
depends on the distance between an employee's headquarters and
job site. The present Grievor objected to the headquarters
(Claireville), to which he had been assigned on May 2, 1982, for
the purposes of payment of travelling expenses and wished to have
his headquarters reassigned to his headquarters, as it was on May
2, 1982 (near the intersection of Highway 400 and 9) and to be
paid travelling credits and related compensation for vehicle use
on the basis of the distance from the headquarters (Highways 400
and 9) and the job site or his home to the job site, whichever
distance was shorter, in accordance with the Ministry's
Travelling Living Expense Accounts Manual. The background to the
cases referred to is set out in the Decision, OPSEU (W. Afful et~al)
and Ministry of Transportation and Communications, 772/84,
777/84, 778/84, 779/84 (Swinton) at pp.l-4:
2
' To understand the dispute in this case, it is necessary to
consider the many cases which have gone before. The collective
agreement between the Ministry and the union provides for payment-
of meal allowances .(Article.l7), compensation for the 'use of a
personal vehicle (Article 22), and time credits while travelling
(Article 23). Article 22 sets out the mileage rates to be paid
for personal use of an automobile by an employee, but it does not
state the points to be used in calculating the mileage
travelled.
"The employees involved in these cases work on the field
staff of the Ministry. They work 'on construction sites, and the
location of their employment varies - that is, they often work
along a stretch of highway under construction, and they move from
one job site to another, as a project is oompleted. They are
paid travel and meal allowances to compensate for the distance
which they may have to travel to work on a particular site. The
collective agreement does not state the points to be used in
calculating travel allowances. ,At one time, the practice was
to use the distance between the employee's home and the place of
work. This was changed to the distance between the employee's
designated headquarters and the job site, with the headquarters
chosen which was closest to the employee's home. The headquarters
can be seen as an artificial place, since the employee does not
report there each day before work; normally, the employee reports
.dfrectly to the job site.
' An earlier arbitration award-between these parties, the
Howes case (356/82 - Verity), determined that the interpke-
tation of Article 22 was governed by the Mnistry's Travellinq
3
and Living Expense Accounts Manual, which provided that a stated
headquarters must be designated as the point of departure of an
employee's operations. The Manual states that the headquarters
should be at the place considered most.convenient for theconduct
of the Ministry's business, and the location should be periodi-
cally reviewed to determine whether the arrangement is
"equitable" to the employee and the Ministry. In the Bowes case,
the Board determined that the redesignation of an employee's
headquarters must be equitable to both the employee and the
Ministry within the meaning of the Manual. This decision was
upheld by the Divisional Court on judicial review, and leave to
appeal to the Court of Appeal was denied.
W The Howes case was one of many precipitated by a decision of
the Ministry to reorganize the headquarters system in the Central
Region in 1982. The Ministry was concerned about the.heavy
financial burden caused by the payment of travelling expenses,
and a decision was made to reduce the number of headquarters from
which employees would be paid travelling expenses from fourteen
to nine. Only two remained in the Niagara region: Burlington
and Beaver Dams, near St. Catharines. Employees like Mr. Howes
and those involved in many of the other grievances which came to
this Board were adversely affected by the consolidation of
headquarters, for the expenses which they had been receiving were
reduced without any change in the location or nature of their
work. This Board, in a number of cases, held that the Ministry
could not unilaterally change the employees' headquarters where
it was not equitable to do so.
4
1' UltimateLy , a consent award was issued by this Board in May
of 1984 (145/82 - Brent), which provided that the Ministry would
reassign all field staff adversely.affected under Articles 17, 22
and 23 of the collective.agreement as .a result of the change .in.
headquarters contrary to Ministry policy to their headquarters as
of May 1, 1982, tinless the change in headquarters was made by
mutual consent or was employee initiated. Ministry initiated
changes in an employee's location in the future would occur only
where a change in the employee's location occurs.
"The result of the consent award is to revive the fourteen
headquarters existing prior to May of 1982 for some employees.
However, for new employees and for employees transferred to a new
region, the Ministry is using only the consolidated headquarters
which it adopted after 1982. *
The parties agreed that the provisions of the
settlement contained in the Brent Decision, referred to in the
Swinton Decision, would apply to this case if it is fotind that the
facts of this case fall within the ambit of the Brent Decision.
The relevant facts applicable to this case are as
follows: The Grievor, in 1982, resided in' Angus, Ontario and his
designated headquarters was the patrol yard near the intersection
of Highways 400 and 9. At that time, the Grievor was working in
the Brampton/Mississauga area, and received travel credits
pursuant to the Ministry's Manual on the basis of travel between
his designated headquarters and the job site.
In May of 1982,the Grievor's designated headquarters
was moved to the Claireville patrol yard, which is.located a few
kilometers from the intersection of Highways 7 and 50. The
Grievor's job site continued to be in the Brampton/Mississauga
area. This led to his travel and related allowances being paid
from the new designated headquarters in Claireville, which was
closer to his job site. The change in headquarters substantially
increased the~portion of the' GrievorJs travel expenses that he
had to bsar.
The Grievor stated that he first learned of the
impending change in headquarters from R. Northwood, the Manager,
Construction Office, during a meeting held in September or early
October, 1981. The meeting is said to have taken place in the
field office near the intersection of Highways 401 and 10.
Official notification of the change in designated headquarters to
the Claireville patrol yard is set out in Exhibit 2 which is as
follows:
” RE:
DESICNATBD HEADQUARTERS
"Our Regional construction program fat several years ahead
indicates a definite pattern of construction zones that are concentrated in the St. Catharfnes, Burlington, Toronto and
Peterborough areas.. As a result of an in-depth review of our staffing requirements for this program, it has become necessary to reassign many employees to headquarters closer
to the centres of construction activity.
“Your present headquarters have been reviewed ar.d you are
advised that effective May 3rd, 1982 we propose to move your
designated headquarters to
5
.Q*$qeyQJe ?a301 Yard . . . . . . . . . . . . . . . . . . . . . . .
“The reassignment of headquarters has been carried out based
on the staffing needs in various areas with due consideration
being given to the location of your present home and headquarters.
“Relocation will be in accordance with the regulations contained
in the Travelling and Living Expense Accounts Kanual.
“If you have any concerns regarding this move or ii further
clarification or explanation is required. please contact your
area construction engineer before February L7th, 1982. I1
‘> .
6 Upon receipt of Exhibit 2, on or about January 29, 1982, the
Grievor commenced to look for, what he referred to as,
"affordable housing" in the CooksvilleDrampton area because of
the anticipated loss of travel expense brought about with the
designation of the new headquarters at Claireville.
The Grievor testified that he was furnished no
opportunity to discuss the move of headquarters with management.
He further testified that some time prior to October 18, 1982, he
had a meeting with his Construction Supervisor, Ivan Tremain, and
was advised that nothing could be done about changing the
headquarters location. The Grievor stated that he then sent
Exhibit 3 to Mr. Tremain:
-_ " @BUT /,@C&M &Co ew f-c;
il (g Jk=ywrd -. p. O-Y.& cosrsf-le/c~/Q~ ,&p&A-a -2/-7LL/EcAD 9
.-4&TtiLLG &- H&r ~//+A HS MiGg3~4v$KCsr=&
ta%f FLU&j y&GfK
“>U/d/UG 77-E --- . . G-F Es& 70
A)PR/L .of /yg-2 6fl ~&,GfCZ/vh t TccatiFCCO -rQ
-$gry ?l s13: z-c4 4ACc5-4 COO~~C ccz --+zL&G~ 7 fdil
.- r’ ~~-L~~-~.-r~-rcod/~ is& r;Lb~~~rx/c .eLO.sEL TO
TCG -SOFA S’S CiC .- w ti4r f Fou-A /LfYC&F Bsc.EP
2-a-- -3-~~~-AT!&r -%!f&%?~ __ T-AK czbilLeL-~&=~~J<~
cku~ .wrrJ /LA /kb-=CA~,‘.
‘(’ /&L-&&wrX.S-0K.‘<~~&~ / ~z.u~
~-+Li!7-L~~~~u~~f = ) b r----lac??K. .&e~~~i-~= ~+cs+Lt e-c!!%
~-G&e&=% /^/ @~--e!7-~L-f!g(fILLzLP--R~~~
(?oMPAez#4acE~ &IT-A gy L(oqsIs’. 1 H&f ~~QZizsT~~~ -.--
3- ??sx3=. AC! u~~-c~~~s..~-~~~~~~~
ikALQ~-i
-
On December 16, 1982, the Grievor received a reply to
his letter of October 18, 1982, from L. M. Peverett, Area
Construction Engineer which is as follows (Exhibit 4):
‘IRE: Headquarters
"Thank you for your letter of October 18, 1982 indicating that you intend to move your home to Brantford, end
requesting that your Headquarters be moved to Burlington
Patrol Yard. Since the construction program in this area
is heavy, it will be in the interests of the Ministry to
agree to this request.
“Your Headquarters will be moved co the Burlington Patrol
Yard effective April 1, 1983 and you will be eligible for
moving expenses in accordance with the regulations contained
in the Travelling and Living Expense Accounts manual.~*
After the Griever's headquarters was moved to the
Burlington patrol yard, his work site became the Burlington
Skyway. Subsequently, he moved to Paris, Ontario to be nearer
the new job site.
i .
8
The Griever testified that the advantage in transferring to the Burlington
patrol yard, and moving to Paris on May 23, 1983, was a saving of some 40 to 50
miles travelling time a day. The Griever stated that he was transferred to the
Burlington patrol yard on May 23, 1983, and subsequently purchased a home in
Paris.
The Griever testified that after the Brent Decision he decided to file
a grievance claiming compensation pursuant to the terms of that Decision.
The basis for the Griever’s claim is set out in his letter to Mr. E.J. McCabe,
Regional Director, dated August 16, 1984 (Exhibit 6) which is as follows:
“I feel I have been adversely affected by the headquarters change and I should
be compensated by:
1) Paid difference in mileage from 400 & 9 headquarters to Clairville, a
distance of 61 km per day and meals from the period of May 1 - 82 to May 1 - 83.
2) May 2 - 83 I moved to Paris and from that date I feel I should be paid
from my home as it is closer than headquarters (400 & 9).
3) As the headquarters have been reverted back to Highway 400 & 9 I am
requesting that the Ministry move me back to the area from which I have resided
for 16 years, for the following reasons:
“I was told at a meeting in October of 1981 that my headquarters would
change from 400 & 9 to Clairville Patrol Yard and after 2 years the headquarters
would likely be changed to 401 & 10. This would mean a distance of 115 km
per day one way. Instead of 48 from 400 & 9 headquarters.
“I was told by several people on the management side that the union
grievances would be in the Ministry’s favour. As I was losing about $15.00
per day in expense money I asked the Ministry to move me to the Brantford area.
“At the construction meeting held in the spring of 1984 we were told that
there was a very good possibility that two of three years from now there would
be layoffs in this area.
“Since I left the Ministry from 1964-1967 my seniority.date is October
16/67. If leyoffs in other regions went back farther than this, I would most
likely be laid off.
,
9
HOWeVar, if the Ministry had not changed all headquarters and
I uould still be at 400 6: 9 and in a 40 km radius, it would mean I
ruould have bumping rights in the Downsview complex.
So you can see from this Mr. McCabe that I feel the Ministry
shoula pay the cost on a move back to headquarters at Hluy.9 & kO0."
On April 2, 1985 the Grievor received a memorandum addressed to
all Construction Staff,in the Hamilton area from J. P. Cullen,
Area Construction Engineer (Exhibit 7) which is as follows:
?gRe: Staff Openinqs - Toronto Area
"The construction program in the Burlington
District has been reduced which has created an overall surplus staff position. The greatest impact is in the St. Catharines area.
"There are a number of vacancies in the Toronto area which you may wish to consider. Employees accepting transfers would carry their present classif-
ication and would be eligible for relocation costs in accordance with current expense account regulations.
"Please indicate in one of the boxes below if you are/are not interested in a transfer to the Toronto area and return to Mr. Ron Hood at the Burlington 'D.istrict Office by April 24, 1985.
"Further information may be obtained from Mr. Hood at 637-5625."
On September 30, 1985, the Grievor was transferred back
to a work site in the Toronto area and his designated
headquarters was once again Claireville. The Grievor stated that
he moved from Paris to Newmarket on December 2, 1985. He
testified further that he had decided to purchase a condominium
in the Newmarket area prior to being transferred back to the work
site in the Toronto area and that he moved to Newmarket because
he was aware of the fact that the transfer was imminent.
On December 2, 1985, the Grievor sent a memorandum to
Mr. Cullen (Exhibit 8) which is as follows:
'I s;;A/GK / /au& /c/ocgE> 70 .&&J&&?/e7 0.d
WC=' &G-- 1 Ah /k&&Y&-,r~~ 7-Nnr &---- x- 62 ru
l?F C~Pc/C&Q FAau OCfl/47WLLK 73 &r,~ Lo ;/5&q
Ar b/ + + -f~o m /N o/= Di=+. z/&V"
Mr. Cullen's dated December 6, 10 reply to the Grievor,
1985 (Exhibit 91 is as follows:
Re: Request for Change in H.Q. Contract 85-13
"Thank you for your letter of 1985 12 02 requesting a change in headquarters from Clairville to the Patrol yard at Highways 400 & 9.
"When your transfer from Burlington District to Toronto was considered earlier this year it was based on your headquarters being assigned to Clairville. It was the
view then that there was sufficient construction activity within 40 km of this site to sustain the staff assigned to this headquarters for the next two-three years. Unfortunately, the same cannot be said of the Highways 400-9 Patrol yard. For this reason I cannot agree to change your headquarters as you request.
"If there is an increase in construction activity which merits increasing the number of staff at Highways 400/9 then consideration will be given to re-assigning your headquarters. '
The Grievor testified that he first moved to Angus in
1967. At that time, his work site was in the area of the Queen
Elizabeth Highway and Highway 427. He acknowledged that the
decision to live in Angus was a voluntary one and that he could
have found living accommodation closer .to the work site but
preferred to drive the some 80 kilometers to the work site, from
Angus, because he did~ not wish to pay the considerably larger
amount for living accommodation which would be required should he.
move closer to Toronto.
The Grievor testified that he looked for alternative
accommodation, closer to his. then work site west of Toronto,
after he received the announcement in the fall of 1981 that there
would be a.change in the designated headquarters to Claireville,
in May of 1982. This led to his looking for work in the Hamilton
area and, subsequently, moving to Paris. He stated that he
started to look for accommodation in the Brantford area late-in
1982 or early in 1983, after receiving Exhibit 4, which informed
him that his headquarters would be the Burlington patrol yard
effective April 1, 1983.
11
The Grievor stated that he moved from Angus to Paris on
May 2, 1983. At that time, he was already working at the job
site in Burlington.
It was as a result of the Brent Decision that the Griever
requested compensation from May 3 1982 to September 30, 1985, on
the basis of his designated headquarters being returned to
Highways 400 and 9. The Grievor, it was acknowledged, was fully
compensated to May 23, 1983, as a result of the improper change
of headquarters to Claireville. The position of the Grievor is
that he is entitled to compensation based on the distance
travelled from the designated headquarters at Highways 400 and 9
or his home in Paris, whichever is closer, to his Burlington work
site after his move to Paris in May of 1983
In all of the above events, the Grievor claimed travel
and expense credits retroactive to January 1, 1986. The
representative of the Ministry consented to the latter claim for
retroactivity should the Grievor succeed.
The Grievor stated that upon reduction of the
complement of staff in the Burlington area and upon his
ascertaining that there was more work available in the Toronto
areai he requested a move to a work site in the Toronto area,
which was granted, with his designated headquarters being moved
to Claireville. It was this move which prompted him to purchase
a home in Newmarket.
As above noted, the Ministry agreed that the Grievor
would be paid travel allowances between his former headquarters
at Highways 400 and 9 to the job site, between May 3, 198i and
May 23, 1983. The sole remaining issue between the parties
concerns the mileage and travel credits which ought to be paid tom
12
the Grievor for the period May 24, 1983 to September 30, 1985.
The alternative claims of the Grievor have been recorded, above.
It was argued on behalf of the Grievor that paragraph
one of the Brent Decision applied to him and that he must be treated
as having been reassigned to his headquarters (Highways 400 and
9) on May 3, 1982, and that his headquarters as at May 24, 1983,
to September 30, 1985 must also be treated as being at Highways
400 and 9.
Paragraph one of the Brent Decision is as follows:
" 1 . All field staff where they have been adversely
affected under the provisions of Articles 17, 22 and 23 of the Collective Agreement as a result of a change in headquarters outside of the Ministry policy
(i.e., similar but not limited to that which occurred in Central Region) will be reassigned to their headquarters as they were on May 1, 1982, or as at a later date effected, save and except where headquarters were changed by mutual consent, or were employee initiated. Further, for the identified Northwestern Region qrievors the date will be November 1, 1981. Such situations must
be identified by the employee so affected, in writing to the Regional Director by October 31, 1984."
It was argued on behalf of the Grievor that his head-
quarters were not "changed by mutual consent" nor were they
"employee initiated" It was submitted that the Griever's
transfer to the Burlington headquarters and his move. to a
residence in Paris were a direct result of the Ministry's
improper action in changing his designated headquarters to
Claireville on May 3, 1982. The Griever's request for a change
in designated headquarters to Burlington and his move to Paris
were stated to be motivated exclusively by the Ministry's
decision to change his designated headquarters, improper in the
circumstances, from Highways 400 and 9 to Claireville.
Counsel for the Ministry argued that the change of
headquarters to Burlington was initiated by the Grievor and that,
accordingly, frog the time of that transfer,. the provisions of
13
paragraph one of the Brent Decision were not applicable to this
case. We were asked to read the language of the provisions of
paragraph one of the Brent Decision restri.ctively.,
As the Grievor
had requested the change of. headquarters, .we were asked to.find
that the change in headquarters to Burlington was "employee
initiated."
Clearly, the Grievor was "adversely affected" as a
result of the change of his headquarters to Claireville from
Highways 400 and 9. We were asked to find, as argued on behalf
of the Ministry, that, while the change of headquarters to
Claireville was not employee initiated, the change to Burlington
was as a result of a formal request made by the Grievor and was
employee initiated.
The alternative position taken by counsel for the
Ministry was that even if the change of headquarters to
Burlington was. not initiated by the Grievor, within the meaning
of paragraph one of the Bzent Decision, the HOW LO ‘Paris and the
request for the Burlington headquarters were not a necessary
result of the Ministry's action in improperly changing the
Grievor's headquarters to Claireville in May of 1982.
The parties argued the case as if the Brent ~Decision would
apply, once it was established that the Grievor; being a member
of "field staff" had been "adversely affected under the
provisions of Articles 17, 22 and 23 . . . as a result of a change
in headquarters outside of Ministry policy", provided that the
change in headquarters was not brought about through "mutual
consent" or was "employee initiated."
As above noted, the Ministry's position was that the
only period left in dispute was from May 23, 1983 to September
30, 1985, being the period after the Grievor's transfer to a
designated headquarters at the Burlington Patrol yard. It was
<. .
submitted that such change was employee initiated, hence, the 14
Brent Decision would not be applicable to the case of the Griever
for the period referred to.
For the Grievor, it was argued that but for the
improper change in designated headquarters from Highways 400 and
9 to Claireville, he would not have requested a change in
headquarters to the Burlington Patrol Yard and would not have
moved to Paris from Angus. This, it was submitted, precluded a
finding that the change in headquarters from the Burlington
Patrol Yard was "employee initiated."
An examination of paragraph numbered one of the Brent
Decision discloses that.-the ‘!headqu+rters changed~;” referred to in
lines 9 and 10 of paragraph 1, refers to one changed "outside of
the Ministry policy . . . .I' That this must be the case can be
readily seen if the related portions of paragraph 1 are
immediately linked together:
0 . . . as a result of a change in headquarters outside of the Ministry policy . . . save and except where headquarters were changed by mutual consent, or where employee initiated . ..'I
The only change of headquarters outside of the Ministry
policy was the change to Claireville, which falls within the
language of paragraph 1: "i.e., similar but not limited to that
which occurred in Central Region." Reference, in paragraph one,
to a change in headquarters which was employee initiated must
refer to one which was outside the Ministry Policy and which was
not "employee initiated." That is: if the change to Claireville
was outside the Ministry Policy, but nevertheless was either
arrived at by mutual consent, or as a result of an employee
initiative. Clearly, on the facts of this case, the Brent Decision
stops at the Claireville transfer, which was neither consented to
by the Grievor nor initated by him. In short, the Brent Decision
15
does not address the issue in this case which is: what is the
Grievor's designated headquarters after his transfer to
Burlington Patrol Yard?
The way .in which the parties argued this case disclosed
mutual acceptance of the Ministry having improperly changed the
Grievor's headquarters to Claireville in May of 1982. The
Ministry acknowledged its responsibility to pay the Grievor
travel allowance from Highway 400 and 9, as long as the Griever's
job site was in the same region. As in the Afful case (at p.7),
the Brent ~Decision was “not designed to deal-tiith the (Griever's)
situation." Here the Grievor was within the terms of the consent
award,to May 23, 1983. Once the Grievor was transferred to the
Burlington Patrol Yard, the Brent Decision.ceased to be applicable.
Although the argument made for the Grievor was based on the
applicability to the Grievor of the Brent Decision, after his..,
transfer to the Burlington Patrol Yard, it was also in evidence
that the Grievor's claim was based, as well, on the other cases
decided by other panels of this Board, referred to at p.9 of
Afful case. The argument made on behalf of the Grievor was based
on the Grievor having suffered damages as a result of the
improper headquarters designation, which damages, after the move
to Burlington, were directly related to the breach. The damages
are said to flow from the Grievor.'s decision to request a move to
the Burlington headquarters, which request would not have been
made but for the improper designation of the Claireville
headquarters. Accordingly, it was the Union's submission that.
the Grievor's. headquarters should be returned to Highways 400 and
9 and travel payments should be made from the closer of his
residence or the Highways 400 and 9 headquarters to his job site
for the period in dispute.
16
As is noted in Brown and Batty, Canadian Labour Arb~itration 2nd Edition,
at p.61:
Unless the agreement provides otherwise, generally, in
assessing damages arbitrators have followed and utilized
the same common law principles that are applied in breach
of contract cases. Thus, the basic purpose of an award
of damages is to put the aggrieved party in the same position
he would have been in had there been no breach of the
collective agreement. As stated by one arbitrator:
Stated in the abstract, the relevant principle is
quite clear. The purpose of damages for breach of
contract is not to punish but to compensate, and the
function of compensation is to place the aggrieved
party in a monetary position as near as possible
to that in which he would have been had the contract
been performed.
The general principle applicable to the law of damages for breach of contract
is stated as follows:
“And it is the general intention of the law that, in giving
damages for breach of contract, the party complaining should,
so far as it can be done by money, be placed in the same
position as he would have been in if the contract had been
performed . . . That is a ruling principle:
It is a just principle.”
See Sally Wertheim v. Chicoutimi Pulp Company (1911) A.C. 301 at 307 per Lord Atkin.
If, as has been noted, the Griever had not chosen Burlington as headquarters
and had not chosen to reside in Paris in May of 1983, the Ministry would be obliged
to pay him for the period May 24, 1983 to September 30, 1985, in accordance with
the Brent Decision, as it did for the period May 2, 1982 to May 23, 1983.
Reference is made to the decision in Hadley v. Baxendale (1854), 9 Ex. 341,
165 E.R. 145, where Alderson B. stated at p-354:
“Where two parties have made a contract which one of them has
broken, the damages which the other party ought to receive in
respect of such breach of contract should be such as may fa:irly
and reasonably be considered either arising naturally, i.e.,
according to the usual course of things, from such breach
of contract itself, or such as may reasonably
be supposed to have been in the contemplation of both parties. at the time they made the contract, as the probable result of the breach of it.”
What is being requested here, on behalf of the Grievor,
is that he be compensated in damages from May 24, 1983 to
September 30; 1985, because his moves to the Burlington
headquarters and Paris residence were the result of the
Ministry's breach of the contract. This fact may not be enough
for the Grievor to succeed.
In Fridman, Law of Contract, at pp.562-63, it is
stated:
"Moreover, it would seem to be implicit in the formulation of Alderson B. Thus, before damages are properly treated as recoverable under Hadley v. Baxendale, it must have been the direct, physical result or consequence of the breach of
contract that is in question. 'Direct damage', it has been
said, 'is that which flows naturally from the breach without other intervening cause and independently of special -circumstances, while indirect damage does not so flow.' Saint Line v. Richardsons Westgarth, [19401 2 KB 99 at p.103 per Atkinson J." (emphasis added.)
In footnote 91 at p.563, Fridman states:
"Hence, it would have to be shown that if the defendant had not broken his contract, the plaintiff would have acted in a different wav so as to avoid the loss which he claims resulted from-the defendant's breach: See Major v. Buchanan (19751, 9 O.R. (2dl 491, 61 D.L.R. (3d) 46; Sykes v. Midland Bank Executor Co., [19711 1 Q.B. 113, [19701 2 All E.R. 471 (C.A.): This is connected with the whole problem of so called 'speculative' loss. . . . .'I
It may be, as the Grievor claims, that he would not
have moved to Paris and changed his headquarters to Burlington
but for the breach committed by the Ministry in assigning him to
headquarters in Claireville. This, by no means demonstrates
that the actions of the Grievor in obtaining a transfer to
Burlington and purchasing a home in Paris flowed naturally from
the breach within the applicable rules. It.was not necessary for
the Grievor to have his headquarters changed to Burlington, or
some other place and to change his residence as a result of the
breach. He was faced with a dilemma, but his response was not
18
the natural consequence of the breach. It is one thing to say
that this might be a response of an employee faced with the
illegal action of the Ministry, it is quite another thing to say
that it. was an effect which occurred "adcording to the usual
course of things, from such breach of 'contract itself, or such as
may reasonably be supposed to have been in the contemplation of
both parties, at the time they made the contract as the probable
result of the breach of it."
It cannot be concluded that the Grievor had to request
a change of headquarters after the improper change in
headquarters for Claireville. If he had remained in the Central
Region, his claim retroactive from January 1, 1986 would have
been allowed to May 3, 1983. The Grievor testified that he
assessed the chance of success of a grievance in May of 1982, and
concluded it was not assured. This prompted the events that
followed. He took a chance and was disappointed. The result
seems, to him, most unfair. If it is, it is also unfair in other
contract cases where a claimant endeavors to limit his losses
(such effort not being in the nature of an attempt to mitigate
damages - nor was any claim to that effect made here) and in the
result finds himself financially worse off than he would have
been in the absence of the now regretted response. As in an
ordinary contract case, the claimant cannot succeed by saying
that he never would have undertaken the now regretted action but
for the breach of contract. There is no basis for creating,
here, a rule relating to damages that would be different from
general contract principles of damage assessment.
Part of the problem affecting the Grievor is a result
of
the length of the time between filing a grievance and the
hearing of the case. If the case could have been more
19
expeditiously heard, the considerations that led him to change
headquarters and residence would not have been the same. The
same situations often affects claimants in cases of breach of
contract not involving labour arbitration where the result would be
the same.
For all the above reasons the grievance must be denied.
DATED AT London, Ontario
This 6th day of Augusts, 1986.
-
M. R. Gorsky
Vice Chairman
,
G.A. Peckham
Member