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HomeMy WebLinkAbout1996-1635.Gamble.98-09-01EMPLOY& DE LA COURONNE DE L’ONTARIO COMMISSION DE RkGLEMENT DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G lZ8 180, RUE DUNDAS OUES r; BURE4U 600, TORONTO (ON) h&G IZ8 TELEPHONEj7~L~PHONE : (416) 326-7388 FACSIMILE/TiLkOPIE : (416) 326-1396 GSB # 1635196 OLB # 228196 I IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Kevin Gamble) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Owen V. Gray FOR THE UNION Bernard Fishbein Counsel Koskie & Minsky Barristers & Solicitors FOR THE EMPLOYER Brian W. Burkett Counsel Heenan Blaikie Barristers & Solicitors Vice-Chair HEARING April 2, 1998 DECISION PI The employer discharged Kevin Gamble from its employment by letter dated September 22, 1994. A grievance complaining of “wrongful1 [sic] dismissal” was filed in mid September 1996, roughly two years later. The employer asks that I dismiss the grievance as untimely, without considering its merits. At all relevant times the parties’ collective agreement provided that 27.7 An employee claiming he/she has been dismissed without just cause shall be entitled to file a grievance commencing at Stage 3 provided he/she does so within ten (10) days of the date of the dismissal. 27.12 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. PI The union asks that I exercise my authority to extend the time for filing the grievance, pursuant to subsection 48(16) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (“the LRA”), which applies to these proceedings by virtue of subsection 7(3) of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, as amended. Subsection 48(16) of the LRA provides that (16) Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agree- ment, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. Facts [31 The grievor began working for the employer as a part-time employee in 1981 or 1982. He became a full-time employee in 1989 or 1990. He was sus- pended with pay effective September 8, 1994 pending an investigation into his -2- alleged failure to follow “Return-To-Stock” procedures at the store at which he was then working. That alleged misconduct was also the subject of criminal charges for which he had been arrested, and was the reason the employer gave for terminating his employment in its letter to him of September 22, 1994. [41 In the course of his employment, Mr. Gamble had learned that there was a collective agreement that set out terms and conditions of employment, and that the union rebresented him in matters relating to his employment. As a result of his suspension, the grievor arranged to meet with Ron Kennedy, a union repre- sentative, to discuss filing a grievance. As a result of the criminal charges he re- tained a lawyer, referred to here as D.B., to represent him in the criminal pro- ceedings. He testified that D.B. told him that he was not to file a grievance or talk to the union, and that he (D.B.) would take care of speaking to or writing to the union. The grievor then telephoned Mr. Kennedy before their scheduled meeting, and told him that on the instructions of his lawyer he would not be fil- ing a grievance or speaking further with the union. Mr. Kennedy was quite sur- prised by this, but made no attempt to persuade the grievor to file a grievance despite whatever his lawyer may have told him. There is no evidence or sugges- tion that D.B. wrote or spoke to the union or that the grievor later asked him whether he had done so. El The grievor claims to have thought that if he were to be acquitted of the criminal charges he would get his job back without going through the grievance procedure. He testified that D.B. told him that another LCBO employee who was dismissed and criminally charged took his advice and got his job back when the charges were dropped, without going through the grievance procedure. I should note that while I accept the grievor’s uncontradicted testimony that D.B. told him this, it is not proof that what D.B. said was true. There is no evidence before me that the LCBO had a policy or practice of reinstating employees who were dismissed for conduct in respect of which criminal charges were later dropped or dismissed even if the employees had not grieved, nor even that it had done so on the occasion that D.B. apparently described to the grievor. There is no evidence -3- that the employer did or said anything that induced in the grievor this belief that he could get his job back without filing a grievance, simply by successfully defending the criminal charges against him. F31 In the fall of 1995 the grievor fired D.B. He testified that he was con- cerned about D.B.‘s unprofessional conduct after D.B. arrived at one court ap- pearance wearing track pants and a sweat shirt and failed to attend the next court appearance. He retained new lawyers. He did not raise his employment situation with the new lawyers, nor they with him, however, until on or shortly before his last appearance in criminal court in April 1996. At or a few days be- fore that appearance, one of his new lawyers asked if he had proceeded with a grievance. When he said he had not, she told him that he should contact the un- ion. At his last court appearance in April 1996 the Crown dropped the out- standing charges. [71 Some time thereafter, the grievor telephoned the LCBO head office, which gave him the telephone number for the union. When he telephoned that number, the union’s receptionist put him in touch with David Lee, whom the receptionist said was the union representative for the area. Mr. Lee told him that he should speak with the person who was the union representative for the area at the time of his discharge. That was Mr. Kennedy. When the grievor contacted Mr. Ken- nedy, Mr. Kennedy told him that he would have to speak to another union repre- sentative, Gerry Chaykowski, about filing a discharge grievance. The grievor tes- tified that Mr. Chaykowski was hard to reach. They eventually met in a tavern, he said, and that led to the filing of the grievance now before me dated Septem- ber 13, 1996. PI The grievor was vague about when these various conversations with the union’s receptionist and union representatives took place. Mr. Kennedy testified that he could not give a date or time for the 1996 conversation in which he re- ferred the grievor to Mr. Chaykowski. He stated that he made the referral be- cause discharge grievances are filed at stage 3 of the grievance process and it was not part of his function to handle stage 3 grievances. According to the -4- grievor’s account, May would be the latest that that conversation occurred. The grievor testified in chief that during this time frame he was going through mar- riage counselling and a separation from his wife, his father was ill and his aunt and uncle died. The grievor had difficulty in cross-examination and re- examination explaining why it took from May until September for him to meet with Mr. Chaykowski and sign a grievance. Mr. Chaykowski did not testify. WI The grievor testified that he wants to return to work for the LCBO, and that compensation for the intervening period is not an issue. [lo] Yolanda Simone is the employer’s Manager for HR Services for Central Region. She testified that when a discharge grievance is filed at stage 3 it goes to the Regional Director and then the HR Manager handles it from there. The HR Manager would be responsible for getting the correspondence, speaking with the District Manager and Store Manager involved, getting their documentation and speaking with Loss Prevention if there was a criminal proceeding. Ms. Simone was asked in cross-examination whether the LCBO had taken the steps de- scribed when this grievance was filed in September 1996. She replied that it had been attempting to do so. She did not identify any respect in which it appeared that the attempt had been less fruitful than it would have been if conducted in September 1994. [ll] Ms. Simone identified the two investigators who would have conducted the original investigation of the grievor’s conduct in 1994. One was still em- ployed by the LCBO. The other had retired about 6 months prior to the hearing, more than a year after this grievance was filed. There was no suggestion that he is beyond the reach of a summons or otherwise unable to testify. The person who was HR Manager for Central Region when the grievor was discharged has since retired. She had health problems at the time of the discharge and may not have been at work at that time. The person who was HRmManager for Central Region when the grievance was filed has since retired. He also had health problems and may not have been at work at the time the grievance was filed and, in any event, did not have any direct involvement in the grievor’s discharge. The individuals who were Store Manager, District Manager and Regional Manager at the time of the grievor’s discharge are all still employed by the LCBO. There is no sugges- tion that any relevant documents known to have been in existence in September 1994 were lost or destroyed between then and September 1996. [12] Article 27 of the parties’ collective agreement provides, in part, as follows: 27.3 . Stage 1 (Complaint Stage) (a) (i) An employee who has a complaint or a difference shall dis- cuss the complaint or difference with his/her supervisor, as designated by the Employers, within ten (10) days of the em- ployee first becoming aware of the circumstances giving rise to the complaint or difference. . . . (c) If the complaint or difference is not satisfactorily resolved by the supervisor, it may be processed within an additional ten (10) days from the date of the supervisor’s response or the expiration of the time limits set out in (b) above, in the following manner. 27.4 Stage 2 27.5 (a) The employee may fde a grievance in writing with his/her super- visor specifying the clause or clauses in this Agreement alleged to have been violated. (b) The supervisor shall complete an investigation of the grievance and provide the grievor with his/her written decision within fif- teen (15) days of receiving the grievance. The investigation may include a meeting with the employee affording him an opportu- nity to be heard. Stage 3 (a) (i) If the grievance is not resolved under Article 27.4, the em- ployee may submit the grievance to the Chairman of the LCBO or Chairman of the LLBO or their respective desig- nees [sic] within five (5) days of the date that he/she received the decision under Article 27.4. . . . 27.6 Stage 4 If the grievor is not satisfied with the decision of the Chairman or designee [sic] or if a decision is not received within the specified time limits, the grievor may apply to the Crown Employees Grievance Set- tlement Board for a hearing of the grievance within five (5) days of the date he/she received the decision or within five (5) days of the expiration of the specified time limit for receiving a decision. 27.7 An employee claiming he/she has been dismissed without just cause shall be entitled to file a grievance commencing at Stage 3 provided he/she does so within ten (10) days of the date of the dismissal. -6- . . . 27.13 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. The preamble to the collective agreement provides that the purpose of the agreement is “to establish and continue harmonious relations between the Em- ployers and the employees covered by this Agreement and consistent therewith to provide procedures for the prompt and just disposition of differences and grievances.” The written grievance here was submitted at stage 3. Argument [13] Union counsel argued that the time limits in Article 27 have a subjective element: OPSEU (Pierre) and Ministry of Correctional Services, 0492186 (Febru- ary 22, 1988, Verity), jud. rev. denied sub nom. The Queen in Right of Ontario as represented by the Ministry of Correctional Services u. Ontario Public Service Employees Union and the Grievance Settlement Board (1990), 74 O.R. (2d) 700 (Ont. Div. Ct.), OLBEU (Gordon) and LCBO, 0048189 (January 10, 1991, Dis- sanayake). As a result, he submitted, time did not begin to run under those pro- visions until the grievor’s lawyer told him in April 1996 that he should contact the union about filing a grievance. [14] As for the period April 1996 to September 1996, or September 1994 to September 1996 if the first submission is rejected, the union asked that I exer- cise my discretion under subsection 48(16) of the LRA and extend the time for filing the grievance. Union counsel submitted that the discretion afforded by that subsection should be exercised as arbitrator Burkett suggested in Re Becker Milk Company Ltd. and Teamsters Union, Local 647 (1978), 19 L.A.C. (2d) 217 at 220- 221: The exercise of the equitable discretion vested in an arbitrator under s. 37(5a) [now 48(16)] of the Act requires a consideration of at least three fac- tors. These are: (i) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance. If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with -7- due diligence, then if there has been no prejudice the arbitrator should exer- cise his discretion in favour of extending the time-limits. If, however, the of- fending party has been negligent or is otherwise to blame for the delay, ei- ther -in whole or in part, the arbitrator must nevertheless consider the sec- ond and third factors referred to above in deciding if reasonable grounds ex- ist for an extension of the time-limits. In so far as Re Pamour Porcupine Mines Ltd. (Schumacher Division) and U.S. W. (1976), 12 L.A.C. (2d) 122 (Dunn), stands for the proposition that the only factor to be considered is the “reasonableness of the excuse” for the delay, I respectfully disagree. The purpose of the section is to alleviate against technical bars. If the offending party has been negligent in its processing of the grievance but the delay has been of short duration an arbitrator would be permitted to rely on the short period of delay as constituting reasonable grounds for an extension. If the grievance involves the termination of an employee, as distinct from some lesser form of discipline, this is also an equitable consideration which must be taken into account, in deciding if there are reasonable grounds to extend the time-limits. One arbitrator has gone so far as to state that in a discharge grievance, . . . there would have to be a very clear case of unexcused, unreasonable delay and prejudice to the employer before it would be proper to deprive the grievor of the right to a hearing on the merits. (Emphasis added.) See Re Lincoln Place Nursing Home and Service Employ- ees Union, unreported, July 8, 1977 (Rayner). The term “reasonable grounds for the extension” as found in s.37(5a) of the Act is not synonymous with the reasonableness of the excuse advanced by the offending party. Having re- gard to the purpose of the section the term carries a broader signification which requires the arbitrator to weigh a number of factors, including but not necessarily restricted to those which have been set out above. Union counsel also referred in argument to Re Toronto Western Hospital and On- tario Nurses’ Association (1983) 9 L.A.C. (3d) 91 (Teplitsky), Re Corporation of the City of Toronto and Canadian Union of Public Employees, Local 43 (1983) 12 L.A.C. (3d) 355 (Knopf), Re St. Joseph’s Hospital, Guelph and Ontario Nurses’ Association (1984) 15 L.A.C. (3d) 376 (Brent), Re Parking Authority of Toronto and Canadian Union of Public Employees, Local 43 (1990), 10 L.A.C. (4th) 318 (Brandt), Re Peterborough Civic Hospital and Canadian Union of Public Em- ployees, Local 19 (1990), 11 L.A.C. (4th) 186 (Emrich), Re Corporation of City of Toronto and Canadian Union of Public Employees, Local 43 (1990) 17 L.A.C. (4th) 420 (Springate), Re Ferranti-Packard Transformers Ltd. and United Steel- workers of America, Local 5788 (1993) 36 L.A.C. (4th) 307 (Haefling), Re Metro- politan Licensing Commission and Canadian Union of Public Employees, Local 79 (1995) 47 L.A.C. (4th) 182 (Springate), Queensway General Hospital and On- -8- tario Nurses’ Association (1996) 57 L.A.C. (4th) 376 (Brent), and OBLEU (Aleong) and LCBO, 1318196 (March 10, 1997, Gray). [l5] Counsel for the union submitted that there was no identified prejudice to the employer, that while the union may have been partly responsible for the de- lay from April to September 1996 there is no suggestion of male fides on the un- ion’s part, and that even if the grievor’s explanation for his delay is not regarded as “reasonable”, the nature of the grievance should lead me to extend the time for filing it despite the length of the delay. [16] Counsel for the employer observed that the preamble to the collective agreement and the provisions of Article 27 make it clear that the parties consid- ered time to be of the essence in raising disputes for resolution. He submitted that there was no subjective element to the test for timeliness in Article 27.7, that the ten day period clearly began to run under that article when the grievor was told his employment was terminated. He argued that there was reason to doubt the grievor’s explanation, and invited me to draw an adverse inference from the fact that the union did not call either D. B. or Mr. Chaykowski to tes- tify. He noted that none of the awards relied upon by the union involved reliev- ing a delay of 24 months. He noted that delay in launching a grievance is of more significance than delay at a later stage in the process, because the employer is left without notice of the need to investigate and preserve evidence: Re Greater Niagara General Hospital and Ontario Nurses’ Association (198 l), 1 L.A.C. (3d) 1 (Schiff). He cited a number of awards in which grievances were dismissed by rea- son of delays considerably shorter than the delay here: Re Corporation of the City of Toronto and Canadian Union of Public Employees, Local 43 (1977) 16 L.A.C. (2d) 355 (Abbott), Clements, 112180 (February 23, 1981, Pritchard), Re Car- borundum Canada Inc., Niagara Falls and United Steelworkers, Local 4151 (1984), 16 L.A.C. (3d) 432 (H. D. Brown), Re Corporation of City of Thunder Bay and Canadian Union of Public Employees, Local 87 (1991) 20 L.A.C. (4th) 361 (Charney), Re Bakery Glaco Inc. and Canadian Automobile Workers (1991), 21 L.A.C. (4th) 116 (O’Shea), Re Metropolitan Separate School Board and Canadian -9- Union of Public Employees, Local 1280 (1992), 27 L.A.C. (4th) 154, Re Abitibi- Price, Inc. and United Paperworkers International Union, Local 1375 (1993), 38 L.A.C. (4th) 59 (Rennie) and Re Kitchener- Waterloo Hospital and London & Dis- trict Service Workers’ Union, Local 220 (1994), 44 L.A.C. (4th) 293 (H. D. Brown). Decision [ 171 In Aleong, supra, the union argued that the time limit prescribed in Arti- cle 27.3(a) - “within ten (10) days of the employee first becoming aware of the circumstances giving rise to the complaint or difference” - involved a subjective element, and that the grievor’s knowledge of his rights and of the grievance proc- ess affected the application of the test. It relied, as it does here, on the Board’s decision in Gordon, supra. I found that that decision did not assist the grievor in the circumstances, because when he learned of his discharge he knew that he had the right to challenge it: The Gordon decision does not appear to me to say that the time limit de- scribed in article 27.3(a) runs only when the grievor has a thorough, detailed understanding of the grievance process. In Gordon, the grievor was not aware that the right on which she relied had been added to the collective agreement until shortly before she made her complaint about earlier events. . ..When he learned that the employer had purported to terminate his em- ployment, the grievor here already knew of the right that he says that con- travened. Indeed, he already knew that a contravention was something that could be the subject of a fight the union would take up for him. Accordingly, the interpretation in Gordon does not assist the grievor. I do not have to de- cide whether the interpretation in Gordon is correct, nor whether a dis- charge grievance can be filed at step 2 of the grievance procedure. Assuming that the union is right on both points, this grievance is out of time. That is so, of course, whether the grievor was actually aware of the applicable time limits or not. [18] For the same reasons, in this grievor’s case the time limit for filing at step 2 under Article 27.3(a)(i) would have run from the time he knew he was dis- missed, since he clearly knew at that time that he had the right to challenge it by filing a grievance. His grievance was filed at step 3, though, which could only have been done pursuant to Article 27.7. That article expressly requires that such a grievance be filed “within ten (10) days of the date of the dismissal.” Un- der either article, then, Mr. Gamble’s grievance was filed nearly two years after - 10 - the deadline imposed by the parties’ collective agreement. During that time the employer had no notice that the grievor had any intention of challenging his dismissal. [19] By Ontario law, every collective agreement must provide for the settle- ment by arbitration of disputes about the interpretation, application, admini- stration or alleged violation of its provisions: s. 48, LRA. The collective agree- . ment may, and usually does, provide for a grievance procedure, under which such disputes must be the subject of discussion with a view to settlement before they are referred to arbitration. Even when the collective agreement contains no mandatory time limit for giving notice of a dispute so that it can be dealt with in the resolution process provided, the claiming party’s undue delay in giving such notice may lead an arbitrator or arbitration board to decline to deal with the dis- pute. This involves the exercise of a discretion similar to the courts’ application of the equitable doctrine of Zaches. The exercise of that discretion turns largely on whether the claiming party’s delay has caused prejudice to the respondent: see, generally, Brown and Beatty, Canadian Labour Arbitration (3d ed., Canada Law Book) ‘lT2:32 10. [20] Employers and trade unions often agree on specific, mandatory time lim- its for filing grievances under their collective agreements. This reflects wide- spread understanding that workplace disputes are best addressed as quickly as possible after they arise, and that the employer should be advised promptly if its conduct is regarded as contrary to the collective agreement (just as an employee or the trade union should be advised promptly when the employer considers his, her or its conduct improper) so that it can govern itself accordingly and minimize the consequences for itself and others should the complaint be established. Delay in raising complaints for resolution is antithetical to labour relations expecta- tions and accepted practices. [Zl] In some circumstances, the strict application of a one-size-fits-all time limit would seem unfair, and a limitation provision that seemed to cause unfair- ness might do more harm than good to labour relations. Unless the parties have - ll- expressly excluded its application, subsection 48(16) of the Labour Relations Act affords arbitrators the power to extend collective agreement time limits in the grievance process, including agreed-upon time limits for filing grievances. The arbitrator or arbitration board may only exercise that power, however, if satis- fied of two things: that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. [22] There are two schools of thought about what may constitute “reasonable grounds” for extension. Some arbitrators have said that to establish “reasonable grounds” the union must establish a reasonable explanation for the defaulting party’s non-compliance with the time limit, that the cause of the delay was be- yond the defaulting party’s control and not due to that party’s failure to exercise due diligence: Re Corporation of the City of Toronto (Abbott), supra, at 127, Re Carborundum Canada Inc., supra, at 439. Others, including this arbitrator, take the view expressed by arbitrator Burkett in the above-quoted passage from Re Becker Milk Co. Ltd,. that while the reasonableness of the excuse for the delay is an important consideration, the nature of the grievance and the length of the delay must also be considered in assessing whether there are reasonable grounds for extension. Adopting that view, Professor Schiff offered an expanded list of considerations in Re Greater Niagara General Hospital, supra: the nature of the grievance, whether the delay occurred in initially launching the grievance or at a later stage, whether the grievor was responsible for the delay, the reasons for the delay, the length of the delay and whether the employer could reasonably have assumed the grievance had been abandoned. [23] However one describes the considerations, on this view of the “reasonable grounds” requirement an extension to permit a grievance to proceed concerning a serious and important matter, such as a discharge, may not be precluded when the defaulting party’s excuse for delay is not itself reasonable. In that event, however, the length of the delay and other delay related considerations become critical in assessing whether there are reasonable grounds for an extension. I shall return to the issue of delay after considering the grievor’s excuse here. - 12 - [24] The grievor knew from the outset that his dismissal could be grieved, and that grieving had to be done through the union. He says that the lawyer that he first retained to represent him in related criminal proceedings told him not to grieve or speak with the union, and explained to him that if he beat the criminal charges he could get his job back even if he had not grieved. He did not check this latter point with the union at the time, nor with the employer for that matter. While his having blindly accepted that lawyer’s advice may not be particularly surprising during the time the lawyer was acting for him, it is peculiar that the grievor did not revisit that decision and check that advice when he lost confi- dence in and fired the lawyer. Several months passed after he did that before his new lawyer raised the issue with him and advised him to file a grievance, and it was several more months after that before a grievance was filed. In any event, the grievor selected the first lawyer and chose to follow that lawyer’s advice. It is therefore difficult to characterize the cause of the first 18 or 19 months’ delay as having been beyond the grievor’s control. If I accept the grievor’s explanation for that period as true, it establishes only that the grievor did not deliberately flout the applicable time limit or decide to abandon any claim to reinstatement he might have had, either of which would have warranted refusing an extension for even a modest delay. The explanation does not excuse the delay in any other relevant sense, however. Similarly, while there is no evidence of bad faith on the part of the union after the grievor finally requested that it file a grievance, such explanation as there is for the last 5 or 6 months’ delay after it was contacted does not excuse that period of delay. Accordingly, the length and effect of the delay are crucial considerations in determining whether to grant an extension under subsection 48( 16) of the LRA. [25] The effect of delay may be that the opposite party would suffer substan- tial prejudice if an extension were granted. Prejudice caused by delay is some- times easily identified. A witness who would have been available for an ensuing arbitration hearing had the grievance been filed in a timely way may have since died or become incapacitated or otherwise unavailable to testify. Documents that the respondent would have preserved had it known of a dispute to which they - 13 - were relevant may have been destroyed in the ordinary course of business, or lost. Other actions may have been taken that demonstrably would not have been taken had the dispute been asserted in a timely way, and which may now be to the respondent’s detriment if the dispute is allowed to proceed. Here, there is no identifiable element of specific prejudice resulting from the delay: no demonstra- bly needed witness who has died or otherwise become unavailable in the mean- time, no arguably relevant document that has been destroyed or lost. [26] The prejudice caused by delay may also be more subtle and, by its nature, difficult to demonstrate. The memories of witnesses who are still available will nevertheless have faded, particularly if there has been no notice that they may have to testify about those memories. As a result, their testimony may be or may seem less reliable, and thence less persuasive, than it would have if there had been timely notice of the dispute. Those now concerned with the dispute may not be able to determine what testimony or documents would have been discovered and preserved earlier, had there been timely notice of the dispute. They may not know what statements would have been given at the time by those witnesses whom they can now identify, nor what might have been found in documents known to have existed then that have since been destroyed. Indeed, they may not now know of or discover helpful witnesses or relevant documents whose existence would have been discovered had timely assertion of the dispute triggered an ear- lier search for them. It is in the nature of these forms of prejudice that their pre- cise effects and perhaps even their existence in a particular case cannot be dem- onstrated. [27] It must be remembered that subsection 48(16) of the LRA identifies the existence of reasonable grounds for an extension is a question distinct from whether the opposite party would suffer substantial prejudice if an extension were granted. A defaulting party who lacks a reasonable excuse for delay cannot claim the benefit of the more liberal view of the reasonable grounds test, which treats the length of the delay as a distinct consideration in assessing reasonable grounds, and then invite the arbitrator or arbitration board to ignore the delay - 14 - because it has not resulted in specific, demonstrable prejudice to the opposite party’s ability to defend its position if the grievance is allowed to proceed. [28] The possibility that delay may have had more subtle prejudicial effects, effects that may not be detectable or demonstrable, is one reason why the length of the delay is an appropriate consideration in assessing whether there are “rea- sonable grounds” for an extension, even when the respondent cannot demon- strate actual prejudice. Another reason why delay should be treated as a consid- eration independent of any demonstrable prejudicial effect is respect for the bar- gain the parties have struck. The parties here have agreed that a discharge grievance must be filed within 10 days. They made their intention that this be mandatory clear by their further agreement that grievances not processed within the time prescribed are deemed to have been withdrawn. Of course, they did this in the shadow of subsection 48(16) of the LRA, the application of which they could have precluded but did not. There is nothing in the subsection, however, that suggests that arbitrators are to entirely ignore parties’ agreement to specific time limits as a consideration in exercising the power conferred, or that they are to proceed as though they were simply exercising the discretion to dismiss for delay that they could have exercised if there had been no such agreement. [29] Even when the opposite party cannot demonstrate substantial consequent prejudice, delay that is due to lack of due diligence on the part of the grievor or someone acting on his or her behalf can be so extreme that the importance of a discharge grievance will not be sufficient basis for using the power in subsection 48(16) of the LRA to override agreed-upon time limits for filing a grievance. The delay here was that extreme. Indeed, the delay from the date of discharge until April 1996, when the grievor says he first contacted the union on the advice of his second lawyers, was that extreme. Most of the decisions relied upon by the union involved delays of several weeks or a few months. One relieves against 7 months’ delay (Re Corporation of the City of Toronto (Springate), supra), one re- lieves against a delay of 13 months (Re Ferrunti-Packard Transformers Ltd., su- pm). Despite the importance of a discharge grievance to someone with this - 15 - grievor’s length of service, I am not persuaded that there are reasonable grounds to relieve against the delay of nearly 24 months here nor, I would add, that there would have been reasonable grounds to relieve against a roughly 19 month delay from September 1994 to April 1996 if this grievance had been filed at that time. [30] I am reinforced in these conclusions by the award of Vice-Chair Knopf in OLBEU (Wicken) and LCBO, 22 16/97, which was released after this matter was argued. (The decision was brought to my attention by employer counsel, who gave notice to union counsel that he had done so.) There, a part-time employee with less seniority than the grievor here had been discharged on the basis of al- legations of misconduct that were also the subject of criminal charges. Vice-Chair Knopf accepted the grievor’s testimony that shortly after the discharge someone at the union had told him, incorrectly, that it could not file a grievance on his be- half, and that two different lawyers had thereafter told him that he should first clear himself of the criminal charges and thereafter take civil proceedings with respect to his discharge. The grievance had been filed soon after the criminal charges were withdrawn by the Crown, roughly 16% months after the discharge. Vice-Chair Knopf also accepted also that there was no specific, demonstrable prejudice to the employer that could not be repaired by limiting the remedy and by the union’s agreement that the absence of certain documents should not weigh against the employer. Nevertheless, Vice-Chair Knopf found that the de- lay was too great, that there were not reasonable grounds for an extension of that magnitude under subsection 48( 16) of the LRA. [31] Likewise, I find that the delay here is simply too great, that this is not a proper case for relief under subsection 48(16) of the Labour Relations Act. The grievance is therefore dismissed as untimely. Dated at Toronto this 1“ day of September, 1998.