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HomeMy WebLinkAbout2011-2303.Sagiuliano.14-03-06 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#2011-2303, 2011-2304 UNION#2011-0617-0008, 2011-0617-0009 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sagiuliano) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Omar Shahab Ministry of Government Services Legal Services Branch Counsel HEARING WRITTEN SUBMISSIONS May 1 & 29, 2013 August 14, September 13, 2013 - 2 - Decision [1] Anthony Sagiuliano is a Maintenance Mechanic who works at the Sudbury Jail. He has filed three grievances alleging that the Employer has failed to accommodate his disability; has taken “willful and deliberate measures” to harass and demean; and has created a poisoned work environment by use of “bullying tactics” and discrimination. [2] On the first day of hearing the Union informed the Board that as part of its remedial request it would seek an order that will affect the Deputy Superintendent, John Cole. The parties agreed on a without prejudice basis to offer third party standing to Mr. Cole. This remedial request was not previously known to Mr. Cole and after his options were set out, the parties agreed to adjourn the day to allow Mr. Cole time to decide how he wished to proceed. [3] Our second day of hearing Mr. Cole advised that he would not be seeking third party standing. [4] At the outset of the second day of hearing, the Employer raised a preliminary objection regarding the grievance dated September 21, 2011. This grievance alleges: I grieve that the employer is taking willful and deliberate measures to create a poison work environment, by using bullying tactics, by discriminating and harassing me personally. The employer’s actions, under the guidance of Mr. Dan Stevens and Mr. John Cole are also making every effort to discredit me and my reputation as a long term employee at the Sudbury Jail. This behavior is causing my work place to be toxic and most of all has become unbearable to attend work regularly. Their conduct is becoming obvious and blatant, which causes the entire workplace to suffer irreversible damages with respect to workplace relationships. [5] This decision deals only with the Employer’s preliminary objection regarding the timeliness of the September 21, 2011 grievance. [6] It was common ground that there was no Stage 2 meeting for this grievance and that it was not referred to the Board for arbitration until April 2, 2012. The parties did not agree to forego a Stage 2 meeting nor did they agree to extend the time limits set out in the Collective Agreement. [7] Some history is necessary to understand all of the aspects of the Employer’s preliminary objection. Two grievances were originally scheduled for hearing before Vice Chair Abramsky on June 19, 2012. By letter dated May 18, 2012 the Union requested consolidation of a third grievance dated September 21, 2011 grievance “as it appears to be related to the other matters scheduled to proceed on June 19, 2012”. Also included in that communication was a document brief. That request was ultimately agreed. - 3 - [8] On May 29, 2012 Mr. Shahab, counsel for the Employer, wrote to Mr. Holmes, counsel for the Union, stating: The Ministry would like to mediate on the upcoming hearing date on June 10. If the Union were agreeable, the Employer would put on hold any requests for particulars/disclosure and any preliminary objections until after June 19. I will forward you any arguably relevant documents that my clients send me before that date. Please let me know if the Union is agreeable to that. [9] The Union agreed and the parties attempted to resolve the outstanding matters with the assistance of Vice Chair Abramsky. As noted above, in preparation for the mediation the Union sent the Employer a book of documents. This book included the three grievances and other relevant documents but not the arbitration referral letters. [10] Unfortunately, the parties did not resolve the disputes and the Vice Chair informed the parties that she would be recusing herself from the file. [11] After the failed mediation Counsel discussed how next to proceed. On June 21, 2012, Mr. Shahab sent the following email to the Board: The parties were unsuccessful in attempting to mediate this case and will require additional dates. The parties have had some discussions around requesting that Vice Chair Briggs be the Arbitrator for the hearing dates. If that is okay with Vice Chair Briggs, would it be possible to obtain her availability. [12] This discussion was held outside of the joint file review process. The request for dates was made, dates were offered and accepted and hearing days were scheduled. [13] The next communication between the parties was by way of letter from the Employer to the Union asking for particulars and reiterating its intention to raise potential preliminary objections. The Union responded to the Employer on March 28, 2013 wherein the Union set out, in a fashion, the particulars. Following this, Mr. Shahab wrote to Mr. Holmes on May 3, 2013. The two and a half page letter asked for documents to be disclosed and certain further particulars to be provided. In that communication preliminary objects were also addressed. Three specific objections were articulated, none of them regarding the timeliness of the referral of the September 11, 2011 grievance. The Employer did state that it would object to a particular area of the Union’s potential evidence as the allegations in that regard “are out of time, beyond the scope of the grievances, and any evidence respecting those allegations is not arguably relevant.” The evidence that was at issue in this discussion appears to be about allegations of mistreatment at the hands of managers prior to 2003. - 4 - [14] At the end of this section of the letter the Employer stated, “Please note that the Employer is still in the process of reviewing the Union’s particulars and looking into whether it will raise any additional preliminary objections. I will notify you shortly if there are any other preliminary matters.” [15] The Employer again wrote to the Union on May 17, 2013. The letter stated, in part: The Employer will rely on the referral letter and grievance form in advancing its late referral motion. The Employer also proposes that the communications between you and I may be relevant to this issue to put before the Vice Chair on consent. The Employer will submit that if this motion is successful, all the particulars that post-date May 19, 2011 should be struck. [16] The parties provided the Board with oral submissions at the hearing and followed up with further written submissions at the request of the Board. EMPLOYER SUBMISSIONS [17] Mr. Shahab, for the Employer, said that the Employer reserved its right to raise preliminary objections on multiple occasions. Accordingly, the Union has known about the objection for a considerable period of time and this objection has never been waived. [18] The Employer contended that the Board has clear and consistent jurisprudence regarding grievances not referred to arbitration on time. Since the issuance of the decision in Re Ministry of Attorney General and OPSEU (Johnston) GSB#2009-1147 (2010) (Dissanayake), it is understood that the referral to arbitration is not part of the grievance procedure and therefore this Board cannot alleviate against untimely references to arbitration. [19] Indeed, there have been a series of decisions upholding that view including Re Ministry of Community Safety and Correctional Services & OPSEU (Goring) GSB#2008-1662 (2010) (Briggs); Re Ministry of Attorney General and OPSEU (Johnston) GSB#2009- 1147 (2011) (Dissanayake); Re Ministry of Government Services & OPSEU (Vitorino et al) GSB#2009-1293 (2010) (Abramsky); Re Ministry of Children and Youth Services and OPSEU (Moody) GSB#2010-2436 (2012) (Abramsky); and Re Ministry of Community Safety and Correctional Services & OPSEU (Ireland et al) GSB#2007-2368 (2011) (Briggs). [20] The Employer noted that in Re Goring, supra, the Board determined that a failure to hold a Stage 2 meeting does not suspend the time limits and that earlier decision must be applied in the case before this Board. The view set out in Re Goring, supra, was tested by the Union in the second decision in Re (Johnston), supra. Vice Chair Dissanayake agreed with the reasoning set out in Re Goring, supra. In that case the Union had put forward - 5 - what it considered to be a new argument that a Stage 2 Meeting is mandatory and a dismissal of a grievance for failure to refer in time was, in effect, amending the Collective Agreement. Vice Chair Dissanayake could have arrived at a different view than that set out in Re Goring, supra, but instead found that the argument was not new, though perhaps articulated more clearly and there was no reason to depart. Vice Chair Dissanayake clarified that the ruling was sound and rested on unquestionable legal foundation, according to the Employer. [21] The Employer properly anticipated an argument from the Union that it had waived its right to raise this preliminary objection regarding timeliness. The Grievance Settlement Board has also been asked to consider the matter of waiver in the past. In Re Vitorino, supra, Vice Chair Abramsky found that when the Employer expressly reserved its right to raise preliminary matters there could be no finding of waiver. It was suggested by Mr. Shahab that in the present case, the Union cannot claim that it has been misled. It was told in the email of May 29, 2012 that there may be preliminary objections. It cannot say that it was not given notice. [22] The Employer relied heavily on Re Moody, supra. It was suggested that the facts are similar. It is noteworthy that in that case it was found that a request for particulars, in and of itself, does not constitute a fresh step. [23] Mr. Shahab said that the Union could have objected to the Employer’s general assertions of possible preliminary matters. It did not respond to the Employer suggesting that it could not reserve its right and that if there were objections they were to be made at that time. If the Union had done that, the Employer could have and would have made the specifics of any objection known at that point. The Union cannot raise waiver after the Employer did precisely what it warned the Union it might do. If a right to reserve is raised and not objected to then the amount of time between the reservation and the specifics being provided is immaterial. Further, it does not matter what takes place in the interim. [24] The Employer noted that the Union was given notice of possible objections prior to mediation. The fact that the Employer engaged in mediation after having done so should not be held against it. Any attempt to resolve outstanding matters should be encouraged and ought not to be utilized to defeat a preliminary objection. From a broad labour relations perspective such an approach would be an improper way to do business. [25] The Employer also asserted that the scheduling of this matter before this Board does not constitute waiver because the Employer had no subjective intention to waive its rights. It was argued that because the intention to raise a preliminary objection was reiterated on March 2, 1013, it is apparent that there was no intention to waive rights. As was found in - 6 - Re Gray Tools Canada Inc. v Communications, Energy and Paperworkers Union of Canada, Local 557, [2013] O.L.A.A. No. 134, April 19, 2013, by Arbitrator Monteith, correspondence between counsel regarding the selection of an arbitrator is not a fresh step. [26] In the alternative, the fact that this matter was moved from one Grievance Board Settlement Vice Chair to another is procedurally and legally irrelevant because the grievance remained before the same legal entity. The change in Vice Chair is simply an administrative activity occurring within the same continuity of legal processes that were initiated when the grievance was first put before the Board and terminates only when a final decision is issued. This is merely a natural continuation of a process within the same step. [27] The Employer also relied upon Re Telecommunication Workers Union, Local 348 v. Telus, [2002]C.L.A.D. No. 236, June 21 (2007). UNION SUBMISSIONS [28] Mr. Holmes, for the Union, suggested that the Employer knew as of April 2, 2012, that the referral to arbitration was beyond the time limits in the Collective Agreement. One only has to look at the grievance itself alongside of the referral letter to appreciate there is a considerable gap in time. The particulars are not necessary to make that determination. Indeed, nothing more than those two documents were needed by the Employer in order for it to specify an objection regarding timeliness. However, that was not done for many months. [29] This matter should not be determined based solely on any correspondence between counsel. The parties are deemed to have an understanding of the Collective Agreement and the Employer was copied on the letter of referral to the Board. There was no magic in this matter, according to the Union. The Employer had all of the information it needed very early on in this process to make a clear and specific objection. It chose not to do so. [30] Mr. Holmes contended that it was reasonable for the Union to conclude that the Employer would not be objecting on the basis of timeliness because almost a year elapsed after the referral of the matter to arbitration and the actual specifics of the timeliness preliminary objection. During that time, the Employer engaged in conduct which constitutes waiver such as mediation, discussing and agreeing upon a new Vice Chair and schedule dates. That conduct constitutes waiver. [31] The Employer cannot assert that it didn’t have enough information to formulate its objection earlier. Even after a book of documents was provided and mediation - 7 - discussions took place – which included this grievance – the Employer elected not to make the specifics of any objection known. Indeed, nothing was done for nine months after mediation in this regard. [32] In the meantime, the parties discussed how to proceed. They communicated and agreed upon a new Vice Chair. The Vice Chair was contacted, accepted and dates exchanged and ultimately set down for hearing. [33] Mr. Holmes noted that the particulars were requested and sent in a letter dated March 28, 2013. The particulars set out facts encompassing all three grievances – as had the book of documents that was provided for the mediation session. No new information was provided. The Employer cannot claim some new revelation that caused it to realize an objection. [34] Mr. Holmes explained that because of the timing of the particulars and vacation time of counsel, it was agreed that some matters would be dealt with at the first day of hearing on May 1, 2013. However, on the first day opening statements and other issues were not raised because of the third party notice issue. The Employer sent correspondence on May 3 regarding disclosure and again vaguely reference potential preliminary objections. It was not until a further two weeks had elapsed – on May 17, 2013 – that the Employer finally notified the Union that it had a specific preliminary objection regarding the timing of the referral to arbitration. Surely this Board must find that the Employer has waived its right to raise an objection. In the alternative, a review of the history reveals a number of fresh steps taken by the Employer that constitute waiver. [35] Mr. Holmes contended that Re Moody, supra, does not assist the Employer as it alleged. In that case there were many grievances filed from grievors working at a variety of workplaces. It was said that the actual number and timing of some of the grievances remained unclear. The major distinguishing feature between that case and the matter at hand is that the Union was specifically told timeliness was one of the Employer’s objections. Further, the Employer made its clear and specified objection known very early in the process. That is not the case in the facts at hand. The Union did not actually learn of the specifics of this objection until after the hearing began before the second Vice Chair. [36] It was conceded by the Union that the Employer invited mediation noting that it was putting particulars, disclosure and possible preliminary objections aside. However, so much time elapsed between the mediation and the actual formulation of the objection that the Employer waived its right to raise this timeliness objection. The crystallization of the dispute came months after efforts were made to settle the matter at mediation. The - 8 - Employer knew as of April 2012 that this referral was out of time but does not set out its objection until May of 2013. Again, that delay must be seen to be waiver. [37] The Union relied upon a number of cases including Re Ministry of Revenue & OPSEU (Fung and Anand) GSB#1989-1798 (1991) (Stewart). On page 11 Vice Chair Stewart (as she then was) states: ……The principle that these cases establish is that an objection based on non-compliance with time limits is waived when there has been a failure to raise the objection in a timely manner and the taking of a fresh step prior to raising the objection. In the circumstances of this case, where the grievance was discussed at two meetings on its merits, the grievance was denied in writing on its merits following the stage one meeting and the timeliness objection was not raised until the written reply subsequent to the stage two meeting, it is clear that a timely objection to the failure to comply with the time limits of the Collective Agreement was not made and that a fresh step was taken prior to the timeliness objection being raised. The fact that the objection was made prior to the hearing or the eve of the hearing does not affect the operation of waiver. Once a timeliness objection has been waived it cannot be revived by notice. For these reasons, it is our conclusion that the Employer’s object to the arbitrability of Mr. Anand’s grievance must fail. [38] According to the Union, in the facts of this case, the Employer had long waived its right to object to the timeliness of the referral to arbitration and it cannot revive that right through its letter of May 17, 2013. [39] There have been many fresh steps taken by the Employer. Mr. Holmes suggested that the deliberate discussions regarding a new Vice Chair and the discussion of possible dates all constituted a fresh step. This process was not akin to Joint File Review which the parties have agreed to exempt from the fresh step category. This was a specific and focused discussion that took place after a mediation session wherein the merits – with accompanying documents – were considered. Throughout the entire process the Employer had many opportunities to raise its specific objection and it chose not to do so – it has waived its right to do so now. [40] The Union urged that this Board should be guided by findings and comments found in Re Ministry of Community Safety and Correctional Services and OPSEU (Wage Grievance) GSB#2003-3075 (2005) (Herlich). While the matter being considered in that case was whether the Employer waived its right to object to the timing of the initial filing of a grievance, the observations are of considerable import to this Board. In that case the Employer did not raise its intention to object until the virtual eve of the hearing, which was some 15 months after the filing of the grievances. In reviewing the case law Vice Chair Herlich noted, beginning at para 42: - 9 - These citations and the cases referred to disclose that a “fresh step” might consist of little more than participation in subsequent steps of the grievance procedure or in the referral of a grievance to arbitration. …… At a minimum the Employer’s failure to raise any timeliness issue for the period of approximately 1 – ½ years between the filing of the grievance and the eve of the hearing before me requires some compelling justification to avoid the conclusion that the Employer has waived its right to raise any timeliness objections. [41] The Union also asked the Board to reflect upon the comments of Vice Chair Herlich regarding whether there was some possible later stage event that caused the Employer to raise its objection at the last moment. He stated, at para 49: ……if I were persuaded that something very recently brought to the Employer’s attention had set off the timeliness warning light for the first time – even at this late stage of the process – I might not be persuaded to conclude that the Employer had waived its right to make the objection. However, I was provided with copies of both the grievance dated October 15, 2003 and the particulars provided by the Union dated March 14, 2005. There is simply nothing in the latter document which is not already contained in the grievance itself and which brings any issue of timeliness to the fore. Indeed, nothing can be pointed to in the Union’s particulars as raising timeliness issues for the first time in the Employer’s mind. In other words, on March 14, 2005 the Employer was in no better position to raise a timeliness objection than it had been on October 15, 2003. And (apart, of course, from the imminent commencement of the arbitration proceedings) neither did it suddenly fact any more pressing urgency to do so. In the interim it had foregone any opportunity to raise the issue either during the grievance procedure or during the Joint File Review or by way of any other less formal communication between the parties. [42] In the instant matter, according to the Union, the Employer knew on April 12, 2012, the date of the late referral to arbitration, that the September 11, 2011 grievance was referred out of time. Nothing changed and no new information in that regard was given to the Employer allowing it to raise the matter on the eve of the hearing. [43] The Union also relied upon Re Ministry of Community Safety and Correctional Services and OPSEU (Culos) GSB#2009-2674 (2011) (Petryshen); Re George Brown College of Applied Arts and Technology and OPSEU (Union) (December 29, 1995) unreported (Burkett); and Centennial College of Applied Arts and Technology and OPSEU (October 17 1997) unreported (Schiff). [44] It was urged that the Employer’s motion should be dismissed. - 10 - EMPLOYER REPLY SUBMISSIONS [45] Regarding the matter of whether the Employer had all the information it needed to determine whether it had an objection regarding the timing of the arbitration referral – there were three comments. First, local circumstances could have been such that there was an agreed upon late Stage 2 meeting in this particular instance or an agreement whereby all Stage 2 meetings are held beyond the mandatory time limits. The Employer would want to gather that information. Second, the document book given to the Employer at the mediation did not contain the arbitration referral notice so there was insufficient information to determine the issue of timeliness at that point. Third, the facts of this case are similar to those found in the Re Ireland et al matter and therefore there is no waiver. [46] The Employer urged that it notified the Union early on in the entire process that a preliminary might be raised and the specificity of the substance of that objection merely closes the loop. The Union was never unaware of the possibility of such an objection. [47] The Employer took issue with the Union’s contention that it was obliged to inform the Union at the very first opportunity of the specifics of its objection. Much of the Board’s jurisprudence addresses the next steps. In this case the Employer made its intentions clear and long before the commencement of the hearing. [48] The Board was urged not to find the fact that it went to mediation as a fresh step because it specifically reserved its rights regarding objections. That reserving of rights must mean that the Employer did not waive its right to object to the timeliness of this grievance. There were no fresh steps taken between mediation and the onset of the hearing and therefore the objection must be upheld. The appointment of the present Vice Chair was not a fresh step but even if it was, the Employer has repeatedly reserved its right to object. [49] The Employer underscored the Union’s failure to take issue with the reservation of any preliminary matter. If silence is acceptance, as suggested by the Union, then it should be applied against the Union. In essence, the Union has waived its right to argue waiver in this case. The grievance should be dismissed contended Mr. Shahab and the Employer’s preliminary motion upheld. DECISION [50] There is no question that the grievance dated September 21, 2011, was referred to the Board beyond the time limits set out in the Collective Agreement. The Union is not asserting that this Board could or should exercise statutory authority to extend the time limits set out in the Collective Agreement. Rather, the matter for this Board to determine - 11 - is narrow. Did the Employer waive its right to raise a preliminary objection regarding the timeliness of the referral to arbitration for the September 21, 2011 grievance? [51] In the past, it has been argued by the Employer that the issue of time limits, particularly at the referral to arbitration stage, is a jurisdictional and not procedural matter and therefore cannot be waived. However, in Re Moody, supra, this issue was squarely addressed by Vice Chair Abramsky. In her decision she said, at paragraph 33: While it is true that Section 48(16) of the Labour Relations Act applies only to the grievance procedure, and not a referral to arbitration – at least under the parties’ collective agreement – the absence of a statutory provision does not change the nature of a time limit. It remains procedural and is subject to waiver. The absence of statutory authority to extend time limits does not change an untimely referral into a matter of fundamental, substantive jurisdiction that cannot be waived. [52] In that decision Vice Chair Abramsky also set out comments found in Brown and Beatty, Canadian Labour Arbitration, regarding the doctrine of “waiver of procedural irregularities” which are useful to the matter at hand. It says: In its applications, waiver is a doctrine that parallels the one utilized by the civil courts known as “taking a fresh step”; and hold that by failing to make a timely objection and by “treating a grievance on its own merits in the presence of a clear procedural defect, the party waives the defect.” That is, by not objecting to failure to comply with mandatory time-limits until the grievance comes on for hearing, the party who should have raised that matter earlier will be held to have waived non-compliance, and any objection as to arbitrability will not be sustained. This has been held to be so even though there was a timely objection to arbitrability but not one that related to the failure to meet time limits. Where, however, the objection to timeliness is made at the earliest opportunity, even if it is not made in writing, it will preclude a finding that the irregularity has been waived. [53] Excerpts from Collective Arbitration in Canada (Palmer) have also been set out in previous Board decisions. It states: Like estoppel, “waiver is a legal barrier to the exercise of the rights in a particular case, erected by the conduct or words of the parties”. Conduct which has been held to amount to a waiver includes: allowing a grievance to go through the grievance procedure; failure to object at the first opportunity in the grievance procedure; … and an attempt to settle the grievance. Waiver can also be by verbal agreement. The right to object at a later stage can be retained by a statement to that effect at the first opportunity or by a timely objection, even though it was not raised until the hearing. Generally, waiver arises therefore where it is clearly indicated that one of the parties does not intend to invoke the procedural provisions of the collective agreement. - 12 - [54] After consideration of all the facts in this matter, some of which are quite peculiar to this case, I am of the view that the Employer waived its right to raise a timeliness objection because it allowed eight months to pass before there was any mention of preliminary issues. In its May 29, 2012 correspondence to the Union, the Employer suggested mediation on the first scheduled day of hearing and said that if this was acceptable it was willing to, “put on hold any requests for particulars/disclosure and any preliminary objections until after June 19.” [55] According to the Employer, it is this communication that made it clear to the Union that it would raise this objection and therefore it has not waived the right to do so. I must disagree. This blanket statement about putting on hold of a potential preliminary objection is insufficient and does not constitute notice of a timeliness objection. [56] Notice of an objection is, at least in part, to give the other side an opportunity to assess whether it wishes to continue with litigation in the face of allegations regarding a technical breach. There was nothing in the May 29, 2012 communication that would allow the Union an opportunity to undertake such a review. The Employer did not even commit that there was a preliminary objection of any sort. It merely put the conversation about such a possibility “on hold” till after the mediation session held on June 19, 2012. [57] However, it was not raised in the weeks or months following June 19, 2012. Indeed, it was not mentioned again until March 3, 2013, some seven months later that there was a further general reference to preliminary matters – no specific mention of a timeliness objection. [58] The Employer would have me find that it clearly did not waive its intention to raise a timeliness objections as evidenced by its reminder to the Union of its “intention to raise potential preliminary objections” in the March 3, 2013 communication. Again, in my view, this statement would not put the Union in a position where it would have known what it should be concerned about. [59] The Employer suggested that the Union could have and should have objected to its declaration that it was reserving its rights. I find that assertion difficult to understand in the facts of this case. How could the Union have challenged such an unspecified objection? There was no indication whether the objection was jurisdictional or procedural. Was the Employer’s concern expansion of grounds, no prima facie case or timeliness? [60] The Employer suggested that this case is similar to Re Ireland, supra, wherein this Vice Chair rejected an assertion of waiver from the Union. I think not. In the facts of Re Ireland, supra, the Employer agreed to consolidate grievances during the course of a mediation session in mid December of 2010 with the understanding that its agreement - 13 - was subject to any preliminaries that might attach to the newly consolidated grievances. It then set out the specifics of a timeliness objection in correspondence to the Union on January 5, 2011. The Union argued that the 21 days that elapsed between agreeing to consolidate the matters was a significant period of time and certainly a fresh step constituting waiver. I dismissed the Union’s argument finding that very little time had actually elapsed as a result of the holiday season and reduced business days between the mediation session and the correspondence setting out the objection. I found that “taking into account the investigation that the Employer would have had to undertake to determine the status of the grievances and the issues raised therein and the time of year, I cannot find that this was a fresh step.” In my view, that decision was very fact specific and does not assist the Employer in the matter at hand. In that case, I was considering a time lag of approximately three weeks between the general assertion that there might be an objection and the specifics of a particular objection. [61] Virtually all of the cases provided refer to objections being raised “at the first opportunity” or “in a timely fashion”. That did not occur in the facts before me. In this case there was an initial delay of eight months before the Employer made a reference to the possibility of “any preliminary objections”. That delay was enough for a finding of waiver. After that initial reference to possible objections another delay of seven months passed before there was merely a reiteration of a possible objection. The actual notice of a specific objection regarding the timing of the referral to arbitration was given some weeks later after this case had actually begun before this Chair. [62] For those reasons, I am of the view that the Employer did not raise its timeliness objection in a timely manner or at its first opportunity. The correspondence of May 29, 2012 and March 2, 2013 did not – indeed could not - revive that right. [63] The Employer argued that it cannot be faulted for not raising the timeliness objection at the time of, or shortly after the referral to arbitration. In defense of this position, Mr. Shahab stated that the Employer did not know if there was an agreement at the Local level regarding the holding or avoidance of Stage 2 meetings. I accept that counsel for the Employer might not have known this information. However, someone on the Employer side knew the answer to this question. Indeed, no doubt it was the same Employer representative who ultimately informed Mr. Shahab that there was no local agreement many months later when the objection was finally set out in detail. [64] I am also compelled to say that I am troubled by the considerable period of time that elapsed between the Employer’s first mention of reserving its right and the actual crystallization of the objection. While I accept that – as in Re Ireland et al – a short period of time between reservation of a right and actual iteration of that objection does not necessarily constitute waiver, the facts of this case reveal that many, many months passed. And, as in the case before Vice Chair Herlich, the facts that the Employer would - 14 - rely upon for the basis of its objection were known – or ought to have been known – from the outset. There was no fact that was revealed through the particularized facts that the Employer pointed to that caused it to suddenly realize for the very first time in the late spring of 2013 that something was amiss. [65] At para 32 of Re Vitorino, supra, Vice Chair Abramsky expressed reservations about broad statements regarding the reservation of rights. She said: I have some real concern about permitting such a broad retention of the right to raise objections that may arise in the future. It creates a potential for abuse – just send a broad-based email reserving your right to object and you create a shield against any claims of waiver. It may also undermine the ability of the other party to know, well in advance, that such an objection will, in fact, be raised. But under the specific facts of this case, the Employer properly reserved its right to make timeliness and other objections. …….. [66] The facts in Re Vitorino were considerably different than those before this Board. In that case, the reservation of the right to raise a preliminary objection specifically regarding timeliness was made known to the Union prior to the Employer’s determination about the practicality of holding a Stage 2 meeting. The email that was sent from the Employer in that case stated, as found at para 40 of the agreed facts on page 10: By way of this email, at the earliest opportunity to do so, hereby services effective notice to the Union that the Employer reserves the right to make any objection with regard to timeliness and/or raise and rely on any other objections to the Grievance Settlement Board’s jurisdiction to address that matter should the matter proceed further than Stage 2. [67] Here, the facts are quite different. Unlike Re Vitorino, supra, in the case at hand, the Employer offered a late and unspecified reservation of rights. In my view, the wording and timing of that communication raises the very type of concern expressed by Vice Chair Abramsky as set out above. My view of this is underscored when it is recalled that even after the parties met and attempted to mediate a resolution on the merits, no further communication was sent to the Union until many months later. [68] Accordingly, for all of those reasons, the Employer has waived its right to raise an objection to the timeliness of the referral to arbitration of the September 11, 2011 grievance. Given this determination it is unnecessary to consider whether the discussions concerning referral of this matter to this Vice Chair constituted a “fresh step”. Therefore, the preliminary objection is thereby dismissed. - 15 - [69] We will continue on our previously scheduled hearing days. Dated at Toronto, Ontario this 6th day of March 2014. Felicity D. Briggs, Vice-Chair