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HomeMy WebLinkAbout1988-0799.Policy.89-10-16 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPL 0 YEES DE L'ON TA RIO ._GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS I80 DUNDAS STREET WEST, TORONTO~ ONTARIO. M5G IZ8- SUITE 2100' TELEPHONE/T~cL~PI-']ONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG IZ8 - BUREAU 2700 (416) 598-0688 '799/88 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Policy Grievance) ~ Grievor - and - The Crown in Right of Ontario (Ministry of Housing) Employer Before: N.V. Dissanayake Vice-Chairperson J. McManus Member F. Collict Member For the Grievor: P. Lukasiewicz Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer: D. Gorelle Counsel Mathews, Dinsdale & Clark Barristers & Solicitors Heazing: August 30, 1989 2 INTERIM DECISION This is a policy grievance which raises once again the status of employees engaged under contract in the unclassified service of the public service. The parties agreed that the Board should initially deal with the grievance as it applies to two specific positions at the Rent Review Office in Windsor, Ontario and allow the parties to assess their position as to how the Board's decision would impact upon the grievance as it applies to other Rent Review Offices throughout the province. This grievance squarely raises the issue dealt with by this Board in the cases ~eresford, 1429/86 (Mitchnick), Mille¥, 1972/87 (Mitchnick) and Hicks, 2563/87 (Fraser) and others. In the Beresford and Mille¥ decisions, the' Board concluded that the grievors had not been properly appointed to the unclassified service because they did not fit within the requirements of section 6 of Regulation 881 under the Public Service Act. in the subsequent case of Hicks, adapting a novel legal argument not presented to the Board in the Beresford/Milley cases, the Board appeared to come to the opposite conclusion, although the Vice-Chairperson in Hicks expressly states'at p. 16 that the Beresford and 3 Mille¥ decisions are correct in so far as they went and are applicable. [See, Bressette, 1682/87 (Wilson) for a review of these cases.] At the commencement of the hearing in this matter, counsel for the Employer raised two preliminary matters:. (1) That the subject matter of the Grievance falls within exclusive management rights under section 18(1) of the Crown EmDloyee~ Collective BarGaininq Act and that as such the Board had no jurisdiction to entertain the same; (2} that this proceeding should be adjourned until the conflict and confusion as to the state of the law in Board jurisprudence is finally resolved. The Board concluded that the evidence relating to the jurisdictional issue is substantially intertwined with the merits of the grievance and accordingly ruled that it will first hear and determine the motion for adjournment. It is common ground that the Board's decisions in Beresford and Mitle¥ were the subject of an application for judicial review. On December 6, 1988, the Divisional Court (File No. 1195/87) concluded that it saw "no error in the finding of the Board or in the methods by which they proceeded" and dismissed the applications. On June 4 16, 1989, the Ontario Court of Appeal denied leave to appeal the Divisional Court decision. The Beresford/Milley case is presently back before the Board for determination of the issue of remedy. The Beresford/Mille¥ and Hicks decisions were also dealt with in subsequent Board proceedings. In Bressette (supra) the Board reviewed the issues thoroughly and came to the conclusion that Beresford is manifestly correct and Hicks is manifestly wrong", (p. 22) and followed Beresford. In a decision released just days after the hearing in this matter was concluded, Blondin, 78/89 (Sloan), the Board states at p. 7 "... this Board has spoken clearly and definitively in Bressette. Hicks is a discredited decision, which cannot be followed by other panels of this Board except at the risk of falling into the same error once again." From the foregoing recitation of the state of the jurisprudence it ~s clear that the two sides of the ledger stack up as follows. The Beresford/Milley decisions have withstood scrutiny of the Divisional Court and the Court of Appeal has refused leave to appeal. The Board has held in no uncertain terms in Bressette that Beresford/Miltey is correct and in Blondin the Board has asserted that future panels must follow and apply 5 those decisions. On the other hand, Hicks stands all by itself. No other panel of the Board has followed it. On the contrary, it has been found by the Board in Bressette to be manifestly wrong and in Blondin the Board characterised it as a discredited decision which ought not to be followed. In light of this state of the law, the Employer has taken the position that the Board ought not to hear and determine ~any further cases raising the status of unclassified employees, for the sole reason that the union has sought judicial review of the Hick~ decision. It is the Employer's pgsition that until the Courts have finally disposed of the Hicks matter and the Board has determined the question of remedy in the Beresford/Mille¥ matter, the law is in a state of conflict and confusion, and that the Board will only add to the confusion by issuing further decisions on the issue. Other panels of this Board faced with grievances raisin~ the Beresford issue have had to deal with motions for adjournment on similar grounds. We were referred to McKinna~ 0439/88 (Fraser), E1-Karazati, 0775/88 (Samuels), Goretski, 0117/88 (Kates) and Beeman, 1477/88 (Knopf) where the Board granted the adjournment. In Mathieu, 987/88 (Epstein) and Tsiotsikas 907/88, the 6 Board refused the request for adjournment. It is to be noted that of the pro-adjournment decisions, all but Beeman were decided while the Beresford/Miltey decisions were still before the courts in the sense that either the Divisional Court's ~ecision or the aDplication for leave to appeal was pending at the time. While the Beeman decision is dated subsequent to the Bressette decision, it makes no reference to Bressette or to its finding that Hicks is manifestly wrong. The Board in Blond%n has clearly and definitively dealt with this conflict in the Board decisions on the adjournment issue. With extensive reasoning, the Board concluded that it will not adjourn the hearing. We find the reasoning in Blondin very compelling and adopt the same. We would even go further and question the basic premise underlying the Employer's request for adjournment, namely that the law is in a state of confusion in this area. Ail of the "judicial" pronouncements including a number of Board decisions, a decision of the Divisional Court and a decision of the Court of Appeal point clearly to the correctness of the Beresford/Mille¥ view. Hicks stands isolated and its point of view has been held by two subsequent decisions of the Board to be manifestly wrong. In these circumstances, does the fact that the union chose to seek 7 judicial review of the Hicks decision (undoubtedly in the hope of bringing it also into line with the Beresford/Mille¥ decisions) render the law "confusing"? We think not. in certain circumstances it may make sense to defer Board proceedings pending the issuance of a determinative court decision. However, on the issue here the Board has spoken with one voice, but for one isolated award, and that has received the approval of the.Courts. In these circumstances, it will make a mockery of the Board's process to refuse to hear and determine matters that come before it merely because the union in Hicks, obviously being in agreement with the Beresford/Mille¥ view, has sought to overturn the Hicks decision. This Board has no policy of automatically adjourning its proceedings if a related matter is before the courts. If that were the case, even if Hicks is quashed by. the courts, the employer can seek judicial review of a subsequent decision of the Board on the same issue and on that basis request that the Board adjourn all proceedings on a similar issue. Counsel for the Employer appeared to concede the absurdity of that situation when he purported give an undertaking to the Board that no further requests for adjournment will be sought after the Court has determined the Hicks issue. While we do not question the sincerit]? of that undertaking, we are not sure that counsel has authority to bind anyone, other 8 than his own client in this particular case, to any undertaking. In any event, in our view the Board has an obligation to hear and determine matters coming before it except in exceptional circumstances. This is not such a case. Despite the fact that Hicks decision is before the Courts, the Board has clearly and definitively pronounced its view. Unless and until the Courts have 'found the Board to be in error the Board must apply its decisions to matters coming before it as it sees fit. As of now all we' have is a pronouncement from t~e courts that the Beresford/Milley view is not in error. For all of the fgregoing reasons, the motion for adjournment is denied. A further hearing will be convened on dates fixed at the hearing for the purpose of determining all of the remaining issues. This matter is referred to the registrar for re-scheduling. Dated this 16th day of 0ct0h~_r, 1989 at Hamilton, Ontario Nimal V. Dissanayake Vice-Chairperson · D. McManus ~ ~ember_ , ' ~/~/~ - ~ ~/ · ~ (Addendum F.T· Collict attached) Member C~b~E~I' RE: G.S.B. 799~88 Subsequent to a review of related G.S.B. cases which had granted leave for adjournment (775/88, 439/88, 901/87), and those which had refused the motion for adjournment (987/88 and 907/88), as well as a review of the Bereseford, Milley, Hicks, Bressette & Blondin awards, this Member is of the opinion that the request for the adjournment of the subject case, G.S.B. 799/88, should not be granted. In this case the Union has requested a declaration that the employer is in violation of the Collective Agreement by not posting a vacancy for the positions in question and that the Ministry must post the vacancies fo~ the positions forthwith. To determine whether a vacancy must be posted as per Article 4.1 of the Collective Agreement, evidence must be adduced to determine whether the subject appointments were either classified or unclassified. The result is that the Board must consider the whole series of awards in Beresford, Milley, Hicks, Bressette, Blondin, etc. To follow the Board's line of jurisprudence it would seem reasonably clear that a number of contract positions may not fall in the unclassified service; and, dependent upon the evidence in this case, the conclusion might be the same. However, does failure to fall within the unclassified category as outlined in Section 6 of the regulation of the Public Service Act automatically mean that the jobs in question must be classified? More importantly, does the Board have the jurisdiction to" .... decide the matter .... "(as per Section 19(1) of CECBA), when, in fact, Management had appointed the employees to the unclassified service (as per Section 18(1) of CECBA)? It would seem reasonably clear that the Board's jurisprudence will be followed relative to the fact that some employees have been appointed to the unclassified service who do not fall within the unclassified specifications as set out in the regulations of the Public Service Act at Section 6. Similarly, it would seem resonable to promptly proceed with the question as to whether or not the Board has the jurisdiction to deal with the matter that has been identified in this series of cases. In view of the above, this Member supports the position to deny the motion for adjournment.