HomeMy WebLinkAbout2012-1337.Nitsotolis.13-11-29 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2012-1337; 2012-1856; 2013-0754; 2013-0755; 2013-1623; 2013-2029; 2013-2398
UNION#2012-0508-0012; 2012-0508-0024; 2013-0533-0003; 2013-0533-0004;
2013-0533-0007; 2013-0508-0017; 2012-0508-0042
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Nitsotolis) Union
- and -
The Crown in Right of Ontario
(Ministry of Government Services) Employer
BEFORE Marilyn A. Nairn Vice-Chair
FOR THE UNION Christopher Bryden
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
Counsel
FOR THE EMPLOYER Caroline Cohen
Ministry of Government Services
Legal Services Branch
Counsel
HEARING
CONFERENCE CALL
October 31, 2013
November 7, 2013
- 2 -
PRELIMINARY DECISION
[1] There are a total of seven grievances before me. This preliminary decision deals only
with GSB File Nos. 2013-2029 and 2013-2398. The employer has raised an objection to this
Board’s jurisdiction to entertain these two grievances.
[2] The parties filed an agreed statement of fact, as follows:
Harassment Grievance (OPSEU #2012-0508-0012, GSB #2012-1337)
1. The employer has raised a preliminary timeliness objection regarding this
grievance. The parties have agreed, without prejudice, to argue this objection in
conjunction with the merits of the termination grievance.
Five day suspension (GSB #2013-2398, OPSEU #2012-0042)
2. The grievor received a five (5) day suspension on October 12, 2012.
3. On October 19, 2012 the grievor e-mailed OPSEU local president Dale Divell
(“Divell”), carbon copying Venditelli [an employer representative], and asking
Divell to sign the grievance. This grievance was not processed any further by the
union until mediation on October 7, 2013, when the union advised that this
grievance would be referred to the GSB. Other than being carbon copied on the e-
mail to Divell, the employer was not sent a copy of the grievance and no stage 2
was held. The grievance was not referred to in Counsel’s request for disclosure
dated September 10, 2013. As of October 16, 2013, neither counsel were aware the
grievance had been referred to the GSB.
10 day suspension (OPSEU #2013-0017), GSB #2013-2029
4. On January 25, 2013 the grievor received a 10 day suspension. The grievance
concerning this suspension was filed on March 14, 2013. No stage 2 was held. The
grievance was referred to the GSB on August 30, 2013. On the same date, OPSEU
asked the GSB to add this grievance to the JFR list for September 4th, 2013. On
September 6th, 2013 Employer counsel noted the referral to the Board was
untimely.
5. The January 25, 2013 10 day suspension relates to incidents that occurred in
October, 2012, however, a meeting did not occur with the grievor, nor was
discipline imposed until January as the grievor was off on sick leave from October
to January.
6. The new collective agreement was ratified on January 24, 2013. The Memorandum
(attached) leading to the new collective [agreement] provided the following letter
from the employer to the union: “The parties agree that training on the revised
Grievance Procedure (Article 22) will be developed jointly by CERC and delivered
to employees and managers within 3 months of the ratification of the collective
agreement. The parties further agree that the revised Grievance Procedure shall
become effective no later than 3 months from the ratification of the collective
agreement and the provisions of the 2009-2012 Collective Agreement shall
continue to apply until that time.” The grievance procedure outlined in the 2013-
- 3 -
2014 collective agreement came into effect on April 1, 2013, after the filing of
both grievances herein under objection.
7. With respect to the five (5) day and ten (10) day suspension, the parties agree to
first obtain a ruling from Vice-Chair Nairn as to whether the GSB has jurisdiction
to extend the time for referral to arbitration. The parties further agree that in the
event that Vice-Chair Nairn determines that the GSB has jurisdiction to extend the
time for referral to arbitration, they can lead further and other evidence and make
further submissions with respect to the timeliness objections, including that the
grievance on the 10 day suspension was filed late.
[3] Article 22 of the 2009-2012 collective agreement sets out the grievance and arbitration
provisions. Article 22.4 stipulates that:
…the grievor my apply, through the Union, to the Grievance Settlement Board (GSB) for a
hearing of the grievance within fifteen (15) days of the date he or she received the decision
[of the senior human resources representative] or within fifteen (15) days of the specified
time limit for receiving the decision
.
[4] In their most recent 2013-2014 collective agreement the parties have amended Article 22
by, inter alia, deleting Article 22.4. A similar provision newly titled “Referral to Arbitration” in
Article 22.6.1 provides that a grievance may be referred to this Board within fifteen days of the
date that a grievor receives the decision of the designated management representative or within
fifteen days of the specified time limit for receiving that decision. In addition, the parties have
agreed to a new Article 22.14.7 that provides:
Notwithstanding Article 22.14.6, the GSB has the jurisdiction to apply section 48(16) of
the Ontario Labour Relations Act to extend the timelines in the collective agreement at all
stages of the grievance and arbitration processes.
[5] These new provisions did not take effect until April 1, 2013. The grievance challenging
the ten-day suspension was filed after the new collective agreement was ratified but before the
amended Article 22 came into effect on April 1, 2013.
[6] Article 22.14.6 of both the 2009-2012 and 2013-2014 collective agreements state that the
GSB has no jurisdiction to “alter, amend or enlarge any provision” of the collective agreement.
[7] There was no dispute that for both grievances the referral to arbitration was beyond the
time contemplated by the collective agreement. Timely referral of the grievance challenging the
five-day suspension would have meant a referral to arbitration on or about December 12, 2012. It
was not referred until October 2013. The grievance challenging the ten-day suspension was filed
on March 14, 2013. A timely referral to arbitration would have been within thirty-seven days
(excluding Saturdays, Sundays, and designated holidays in accordance with Article 22.14.2) of
that filing; that is, on or about May 8, 2013. The grievance was referred to arbitration in August
2013.
* * *
- 4 -
[8] It was the position of the employer that this Board has already determined that it has no
jurisdiction to extend the time limits on a referral to arbitration, relying on the decision in The
Crown in Right of Ontario (MAG) and OPSEU (Johnston), GSB File #2009-1147, a decision that
has been followed in The Crown in Right of Ontario (CSCS) v. OPSEU (Goring), GSB File Nos.
#2008-1661 et al. and others. Those cases, argued the employer, review the Leisure World line of
cases that evaluated the effect of the legislative change in Bill 7 to the Labour Relations Act (the
“Act”) that removed the words “and arbitration procedure” from section 48(16) of the Act. Those
GSB cases, argued the employer, concluded that the terms of Article 22 of the 2009-2012
collective agreement draw a distinction between the arbitration and grievance provisions and that
there is no jurisdiction to extend lime limits with respect to a referral to arbitration following the
amendments to section 48.16 of the Act. The employer relied on the decision in The Crown in
Right of Ontario (Toronto Area Transit Operating Authority) and the Amalgamated Transit
Union (E. Blake et al), GSB File No. 1276/87 et al. for the proposition that this Vice-Chair is
bound by those earlier decisions of the Board. The facts established, argued the employer, that in
both of these cases, the referral of the grievances to arbitration was untimely and therefore the
Board has no jurisdiction to entertain those grievances.
*
[9] The union noted that these discipline grievances are relevant to the termination grievance
also before me and to the grievor’s position that the Human Rights Code (the “Code”) is engaged
in all of the grievances. In that respect, there is an allegation that the discipline was imposed in
retaliation for the grievor seeking to enforce his rights under the Code.
[10] The union acknowledged the late referral in both cases. It was the union’s first position
that the decisions in Johnston and Goring, both supra, were wrongly decided and that,
notwithstanding the Blake principle, exceptional circumstances existed such that the Board need
not, and ought not to follow those decisions. In that regard, the union argued that the Board
misapplied the Leisure World analysis in the Johnston case, as, in the union’s submission, the
grievance and arbitration provisions in Article 22 of the collective agreement were “inextricably
interwoven”, thereby making the referral to arbitration part of the grievance process. The union
reviewed the decision in James Bay General Hospital and P.S.A.C., (2003) 126 L.A.C. (4th) 1
(Devlin), upheld on judicial review, wherein, the union argued, the arbitrator found a similar
arbitration provision to form part of the grievance procedure and thereby took jurisdiction. On this
issue of the interpretation of the collective agreement language, the union also relied on the
decisions in International Language Schools of Canada v. OSSTF, District 34 (Prepos
Grievance), (2005) 141 L.A.C. (4th) 248 (Gray); Forest Hill v. CAW-Canada, Local 830 (Quashie
Grievance), (2007) 166 L.A.C. (4th) 356 (Saltman); I.A.M.A.W. Hotel and Healthcare Workers,
Local 1295 v. Crowne Plaza Toronto Airport (Misljenovic Grievance), [2010] O.L.A.A. No. 335
(Whyte); and Gray Tools Canada Inc. v. Communications, Energy and Paperworkers Union of
Canada, Local 557 (McNeil Grievance), [2013] O.L.A.A No. 134 (Monteith).
[11] The union acknowledged that, even if these cases support a different conclusion than that
found in Johnston and Goring, the Blake principle would require either exceptional circumstances
and/or manifest error in order to depart from the Board’s caselaw. In that regard it referred to an
excerpt from Hadwen et al., Ontario Public Service Employment & Labour Law, Irwin Law, 2005
at pages 539-541. It relied on the decision in The Crown in Right of Ontario (MCSS) v. OPSEU
(McInnis), GSB File No. 2967/92 to argue that where the earlier decision is manifestly wrong it
- 5 -
cannot be applied. Given that the Divisional Court upheld the decision in James Bay, supra,
argued the union, it must be concluded that Johnston and Goring, supra, were decided incorrectly
and ought not to be followed.
[12] In the alternative, the union argued that the 2013-2014 collective agreement explicitly
provides the Board with the jurisdiction to extend the time limits for referral to arbitration and can
be applied to both grievances. Notwithstanding that the new Article 22 post-dates the filing of the
grievances, argued the union, the Board is entitled to rely on Article 22.14.7 in the new collective
agreement as that new agreement was in place when the grievances were referred in August and
October of 2013. Article 22.14.7 refers broadly and generically to “the” collective agreement, a
reference, argued the union, that would include the old collective agreement under which the
grievances were filed.
[13] Thirdly, the union argued that because the Code is engaged, the Board can rely on the one-
year time limit for the bringing of a complaint and the discretion to extend time limits in section
34 of the Code. As the Board has jurisdiction under section 48(12)(j) of the Act to interpret and
apply employment related statutes, argued the union, the Board therefore has the jurisdiction and
discretion to extend time limits pursuant to section 34 of the Code.
*
[14] In reply, the employer noted that there were no exceptional circumstances warranting a
departure from the Johnston decision. The same arguments were made in that case, argued the
employer, and the Vice-Chair had the James Bay decision before him in reaching the decision in
Johnston. This was, argued the employer, simply an attempt to re-litigate the issue.
[15] There is no ability, argued the employer, to retroactively apply a provision in a new
collective agreement to matters arising under a prior collective agreement. Article 22.14.7 of the
2013-2014 collective agreement was simply not in force, argued the employer, at the time these
grievances were filed. There is nothing in the language of the collective agreement, argued the
employer, to suggest that there was any intention to have this provision apply retroactively so as
to cure any and all deficiencies in the referral of grievances filed under prior collective
agreements. In negotiating the changes to Article 22, argued the employer, the parties understood
that a bright line was required for its implementation. They agreed, argued the employer, that the
new Article 22 would not take effect until April 1, 2013. Therefore only grievances filed after that
date would fall under the new procedure, argued the employer. In that regard the employer relied
on the decisions in MacMilllan Bathurst Inc. and I.W., Loc. 2-1000, [1988] O.L.A.A. No. 59
(Springate); London (City) v. CUPE, Local 107 (London Civic Employees)(Dark Grievance),
[1998] O.L.A.A. No. 603 (Marcotte); Hamilton-Wentworth District School Board v. OSSTF
(Collective Agreement Grievance), [2008] O.L.A.A. No. 354 (Knopf), and Dayco (Canada) Ltd.
v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-
Canada), [1993] S.C.R. 230.
[16] With respect to the application of the time limit in the Code, the employer relied on the
decisions in Fiddick’s Nursing Home v. Christian Labour Assn. of Canada (Bell Grievance),
[2000] O.L.A.A. No. 481 (Goodfellow) and Renfrew County and District Health Unit v. OPSEU,
[2013] O.L.A.A No. 342 (Parmar) to argue that the Code provisions cannot create jurisdiction in
the absence of a finding of jurisdiction under the collective agreement. It is only that jurisdiction
- 6 -
found in the collective agreement to entertain the grievance, argued the employer, that then allows
the Board to consider the Code provisions.
* * *
[17] In both cases there is no dispute that the grievance was not referred to arbitration within
the time limits set out in the collective agreement. The issue is whether the GSB has jurisdiction
to entertain a grievance when there has been a late referral of the grievance to arbitration.
[18] The first issue is whether it is appropriate to depart from the finding in Johnston, supra,
that the language found in Article 22 of the 2009-2012 collective agreement does not provide the
Board with jurisdiction to entertain a grievance in the circumstance of its untimely referral to
arbitration. The decision in Blake, supra, (at page 8) notes that, in private ad hoc arbitration, there
exists the capacity to decide each case on its merits but that as a general policy, arbitrators do “not
depart from earlier decisions unless such decisions are manifestly in error”. It further discusses
that the Board is one entity, making clear that, “…each decision by a panel becomes a decision of
the Board…”. Good policy reasons support that conclusion, including avoiding a multiplicity of
proceedings and providing clear and consistent direction to the parties who appear before the
Board.
[19] The test for departing from an earlier decision was articulated in Blake as “exceptional
circumstances”. While the parameters of that test were not discussed, it was identified as a
standard higher than “manifest error” (at page 9).
[20] It cannot be said that the decision in Johnston meets even the lower standard of manifestly
in error. The issue of the proper interpretation of the collective agreement provision regarding a
referral to arbitration was directly considered and determined in the Johnston case. The same
arguments made before me were considered by the Vice-Chair in that case. The Divisional Court
decision in James Bay, supra, was also considered. The Vice-Chair in the Johnston case
accurately considered that the provisions of Article 22 of the collective agreement were not
limited to grievance and arbitration provisions but included other substantive rights as well. He
concluded that, having regard to the totality of the provision, a different interpretation from James
Bay was warranted.
[21] That another Vice-Chair might come to a different conclusion does not result in manifest
error. Reasonable people may reasonably come to different conclusions regarding the
interpretation of provisions of a collective agreement. That decision was not challenged on
judicial review and has subsequently been followed in other Board cases. The assessment of the
collective agreement language in Johnston is distinguishable from that in McInnis, supra. In that
case a subsequent panel of the Board found that an earlier decision was made in excess of
jurisdiction because it required the insertion of the words “within the Ontario Public Service” into
the collective agreement in order to reach its conclusion, thereby amending the terms of the
collective agreement. Given the limits on the Board’s jurisdiction set out in Article 22.14.6 of the
collective agreement, necessarily adding words to the collective agreement in order to reach a
particular interpretation reflects manifest error.
[22] The conclusion in Johnston does not rely on any amendment or addition to the collective
agreement language. It applies accepted principles of interpretation to parse the language used by
- 7 -
the parties, considering the provision as a whole in reaching the conclusion that the arbitration
provision in Article 22 is distinct from the grievance procedure. As a result of the Leisure World
analysis of the effect of the change to section 48(16) of the Act, the conclusion that the Board was
thereby without jurisdiction to entertain a grievance that had not been referred to arbitration in a
timely manner, cannot be said to exhibit manifest error. Other than the assertion that the employer
conduct challenged by these grievances is part of the grievor’s larger position in these and the
other grievances, no other circumstance was relied on other than manifest error to argue that the
decision in Johnston ought not to be followed in this case.
[23] The fact that the conduct challenged by the grievances may otherwise form part of a larger
legal position does not qualify as an exceptional circumstance to warrant departing from the
earlier decision and taking jurisdiction when none has been found to exist in the language agreed
to between the parties. It must be assumed that all grievances have value to a grievor, otherwise
no grievance would have been filed. That fact alone cannot confer jurisdiction when none
otherwise exists. I find no appropriate basis for departing from the analysis in Johnston, supra.
Thus the union’s first argument fails.
[24] The union argued in the alternative that jurisdiction may be found in the provisions of the
new collective agreement; that jurisdiction may be determined as of the date of referral to
arbitration. No authority supported this proposition. As noted in MacMillan Bathurst, supra:
15 … The weight of the arbitral jurisprudence, however, indicates that the rights
claimed by a union and a grievor vest with the filing of a grievance…in the instant case,
we are satisfied that the relevant date in assessing what collective agreement applies is not
the date the grievance was referred to arbitration, but rather the date of the grievance
itself…
[25] This is settled law. As a practical matter, to find otherwise would allow a union to revive
old grievances that had been abandoned without a referral to arbitration and claim jurisdiction to
have those grievances determined under a subsequent collective agreement. The legal
inconsistency in this argument was made clear in Hamilton-Wentworth District School Board,
supra. An arbitrator cannot take jurisdiction under one collective agreement and then determine
the grievance pursuant to rights established under an earlier collective agreement. And it cannot
be suggested that the later collective agreement establishes the rights to be determined, as any
rights in a subsequent collective agreement did not exist at the time the grievance was filed under
an earlier collective agreement.
[26] An arbitrator’s jurisdiction derives from the terms of the collective agreement pursuant to
which the grievance was filed. In this case, the grievance challenging the five-day suspension was
filed in October 2012, during the life of the 2009-2012 collective agreement and pursuant to its
terms, including Article 22 as it then was. The grievance challenging the ten-day suspension was
filed on March 14, 2013, pursuant to the terms of the 2013-2014 collective agreement, including
Article 22. However, the amended Article 22 of the 2013-2014 collective agreement did not come
into effect until April 1, 2013. As reviewed in paragraph 6 of the agreed statement of fact, the
parties expressly agreed that the grievance and arbitration provisions of the 2009-2012 collective
agreement “shall continue to apply until that time”. Thus it was the 2009-2012 iteration of Article
22 that applied to the filing and referral of both of these grievances. Given the decision in
Johnston, supra, reviewed and accepted above, that language does not support a finding that I
have jurisdiction to entertain the grievances in light of their late referral to arbitration.
- 8 -
[27] The union’s final position was that I may take jurisdiction from section 34 of the Code. In
Fiddick’s Nursing Home, supra, the arbitrator noted:
7 I have been appointed to hear and determine a grievance filed pursuant to the
terms of a collective agreement. My jurisdiction to deal with that grievance stems from the
provisions of the collective agreement and the Labour Relations Act, 1995. Article 16.02
of the agreement establishes a… time limit for the filing of grievances… Article 16.05
provides that “…if the grievance has not been processed…in accordance with the specified
time limits, the grievance shall be deemed to have been withdrawn”. Accordingly, in the
absence of some statutory authority to the contrary, I would be without jurisdiction to
determine the merits of the grievance.
8 Section 48(16) of the Act supplies such authority. It expressly confers on
arbitrators the power to relieve against collective agreement time limits where
circumstances warrant
9 In my view, what the union is asking me to do in this case is to determine that the
power to interpret and apply the provisions of the Code somehow effects a mandatory
substitution of the time limits for the filing of grievances…. Quite apart from the more
formalistic points that I am not the “Commission”, that I do not have before me a
“complaint”, and that there is nothing to suggest that the provisions respecting the
handling of complaints are to apply mutatis mutandis to grievances before me, the two
provisions (ie. article 16.02 of the collective agreement and section 34(1)(d) of the Code)
are not of the same type: one is a time limit and the other is a discretion respecting
timeliness. Thus, one cannot serve as a substitute for the other, nor can it be said that one is
in conflict with the other such that the statutory provision would be deemed to prevail.
10 …In the absence of some clear statutory indication that the latter [section 34(1) of
the Code] is intended to displace the former [section 48(16) of the Act] when the grievance
alleges a breach of the Code, I must apply the provision that was enacted to deal with the
specific situation before me: a request for the extension of collective agreement time
limits. That provision is section 48(16), not section 48(12)(j) or section 34(1)(d) of the
Code.
[28] Any jurisdiction to “interpret and apply” the provisions of the Code found in
section 48(12)(j) of the Act would not lead to the result sought by the union. Section 34
sets out part of the process for filing a complaint before the Tribunal. That process is
entirely independent from the arbitration process. The fact that section 34 of the Code
grants the Tribunal certain authority with respect to receiving a complaint does not confer
jurisdiction on an arbitrator constituted pursuant to the terms of a collective agreement.
Interpreting and applying section 34(1) of the Code tells me that the filing of a complaint
before the Tribunal may be done, essentially, within one-year after the incident, and that
the Tribunal has, under section 34(2) a discretion to relieve against that time limit. The
jurisdiction given by section 48(12)(j) of the Act to interpret and apply the Code does not
result in an arbitrator becoming the Tribunal such that its processes somehow supersede
provisions of the collective agreement regarding the scope of the arbitrator’s jurisdiction.
As noted in paragraph 29 of Renfrew County and District Health Unit, supra, an
arbitrator’s jurisdiction flows from the collective agreement and from the Act. While Code
- 9 -
provisions may be relevant to an exercise of arbitral discretion to extend time limits, it
cannot confer jurisdiction where none otherwise exists.
[29] Similarly in Fiddick’s, supra, the arbitrator found that section 48(16) of the Act
provided the “exclusive basis upon which the grievance may be allowed to proceed” (para.
6). Section 48(16) of the Act provided the arbitrator with the discretion to extend the time
limits for the filing of the grievance, notwithstanding its late filing. However, in the
grievances before me, and further to the decision in Johnston, supra, I have no jurisdiction
pursuant to section 48(16) of the Act, as these grievances were referred to arbitration in an
untimely manner. The changes to section 48(16) of the Act referred to earlier and dealt
with in the Leisure World line of cases, determined that the discretion to extend time limits
provided by section 48(16) of the Act is not available with respect to untimely referrals to
arbitration. I find that section 34 of the Code does not supersede Article 22 of the
collective agreement so as to provide me with jurisdiction to entertain these grievances
that were referred to arbitration outside the time limits established by the collective
agreement.
[30] Having regard to all of the above, I find that I have no jurisdiction to entertain the
two grievances that were referred to arbitration in an untimely manner. Grievances filed as
GSB File Nos. 2013-2398 and 2013-2029 are therefore dismissed.
Dated at Toronto, Ontario this 29th day of November 2013.
Marilyn A. Nairn, Vice-Chair