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HomeMy WebLinkAbout1988-0907.Tsiotsikas.89-06-21 ONTARIO EMPI. OY'~S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1ZS - SUITE 2100 TELEPHONE/T£1...~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M.5~ 1Z8- BUREAU 2100 (416) 598-0~88 907/88 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEMENT BOARD Between: OPSEU (TSiotsikas) Grievo. r - and - The Crown in Right of Ontario (Ministry of Skills Development) Employer Before: T.H. Wilson Vice-Chairperson P. Klym Member A. Merritt Member For the Grievor: H. Law Senior Grievance Officer Ontario Public Service Employees Union For the Employer: 'D. Brent Labord Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearings: February 1, 1989 PRELIMINARY DECISION This grievance arises out of the background of the recent decisions of the Grievance Settlement Board in Beresford and the Ministry of Government ~Services (G.S.B. 1429/86) and Hicks and the Ministry of Community Services (G.S.B. 2563/87). The union relies on Beresford and the Ministry relies on Hicks. The Ministry moves that the hearing on this issue be adjourned sine die pending final court determination of both Hicks and Beresford. At the time of our writing, the Ministry is seeking leave to appeal to the Court of Appeal from the dismissal of its application to review the Board's decision in Beresford and the union has filed an application to the Divisional Court to review the Board's decision in Hicks. On the other hand, the union replies to the Ministry's request for an adjournment sine d~e that this Board should decide the apparent conflict between Beresford and Hicks itself without awaiting the court decisions in those two cases. This is not the first instance in which a request for adjournment has been requested from this Board for that very' reason. We are aware of three Board decisions, in two of which the adjournment has been granted and ih one of which the Board has refused an adjournment and did ~. -receive argument on the substantive issue of the apparent conflict between Beresford and Hicks. The three cases are respectively, McKinna and Ministry of Transportation (G.S.B. 0439/88, Vice-Chairperson Fraser), El- 2 Karazati and Ministry of Revenue (G.S.B. 0775/88, Vice- Chairperson Samuels) and McClellan and Ministry of Labour (G.S.B. 865/88. Vice-Chairperson Forbes-Roberts). At the same time, this Vice-Chairperson is also the Vice-Chairperson on another panel in which further written arguments are being received and for which no request for adjournment has been requested by either party; that is the case of Bressette and Ministry of Health (G.S.B. 1682/87). The essence of the Ministry's argument for an adjournment is that in both Beresford and Hicks the Court will have to decide whether the Board acted correctly in reaching its decisions and that therefore the Court decisions will be directly determinative of the issue. Thus, the Ministry distinguishes the situation from one where the Board is reviewed merely for reasonability. The union responds to this argument that the Court might review solely for reasonability and so it is possible that both Hicks and Beresford may be sustained as reasonable. Consequently, argues the Union, the apparent conflict will be returned to the Board to determine'. Therefore, there is no reason, argues the union, to delay the determination. Mr. Fraser for the panel in McKinna at pages 6 and 7 wrote: "...However, we agree with Counsel for the Employer that once the review process has been launched for the very issue~ sought to be reargued before us, it would be inappropriate for us to proceed. In adopting such a view, we take notice of a long- standing practice of various panels of this board to adjourn a case where a review of a similar issue has been commenced, and in doing so we would refer only briefly to the enormous complications that could occur should a board proceed under such circumstances. For example, a panel of this 'board may reverse the result of an earlier panel as being, in its view-"manifestly wrong", or perhaps superceded by later developments in board jurisprudence, but there ~may at the same time be some variation in the'facts or issues considered by the second board. If that is done pending judicial review of the earlier decision, and that earlier decision is upheld, not because it is "correct", but because the review court defers to it as being within a range of reasonable results, then one can arrive at a situation where simply no one knows where the jurisprudence stands. Variations on this theme abound. Now the Hicks board ~proceeded notwithstanding the Beresford review because as the decision indicates, it was a new issue, not raised in Beresford, and accordingly not a matter under judicial review in that decision. However, in the present case, Counsel seeks t~ explore · the very issue raised in Hicks, of 'a resolution of a conflict between parts of a collective agreement anda regulation. Such would attract the dangers we have noted above and we are consequently of the view that it inappropriate to proceed at this time. These are the reasons for our unanimous ruling given orally at the hearing, which we repeat below." In E1-Karazati, Vice-Chairperson Samuels' wrote at page 7: "In our view; the appeals of the three cases - Beresford, Milley, and Hicks - all raise one central issue: Is it possible for an employee robe a member of the "unclassified service" if he or she does not fit within the categories set out in section 6 of Regulation 881 to the Public Service Act? And this is the central issue in our case. In our view, it would be unwise for us to give yet another pronouncement from this. Board on this issue, when the matter is before the Courts already in three cases. Counsel for the grievor suggested that we ought to proceed because he had some new arguments to make to us. But his arguments dealt with the central issue. The Courts may well consider all the arguments, new and old, in their review of this central issue. It would serve no good purpose for us to add our comment on this issue." The decision to proceed to receive argument on the sub- 4 stantive issues in McClellan were delivered orally and we have no record consequently of the grounds. However, it is clear that just as there may be a conflict between'Beresford and Hicks there is also a conflict between McKinna and El, Karazati on the one hand and McClellan on the other hand. Chairperson Shime in Blake and Amalgamated Transit Union and Toronto Area Transit ODeratinq Authority (G.S.B. 1276/87) has considered the situation where the board is asked to reconsider one of its earlier decisions. In that case the Chairperson stated that the Grievance Settlement Board is one entity - it is not a series of separately constituted boards of arbitration. Under subsection 20 (6) of the Crown Employees Collective Bargaining Act, a decision of the majority of a panel is "the decision" of the Grievance Settlement Board (page 8). He continued at pages 8-9: "Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also given the volume of cases that are currently administered by this board, the continuous attempts'to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates Undue administrative difficulties in handling the case load. We are mindful, however, that there is no provision for appeal and there are limits to judicial review. While it is our view that the "manifest error" theory is too lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might be reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party seeking review to 5 establish exceptional circumstances." The actual issue in ~lake was whether the individual employee or the union controls access to arbitration with respect to those matters where an employee has the right to grieve under Section 18 (2) of the Act. The issue in~ Hicks and Beresford is a substantive issue. The issue in McKinna and El-~arazati, and McClellan is one of practice or procedure: namely, should this board'await th~ court determinations or proceed directly to attempt to decide an apparent conflict in its own substantive jurisprudence? If there were no court 'reviews underplay of this Board's decisions in Beresford and Hicks, there Tis no.doubt in my mind that this ~oard would have to receive argument on th~ apparent conflict between those two cases. Indeed, the issue is repeatedly now being put to the Board. Without court, review and without an internal appeal mechanism, the Board would have to reach some ultimate consistency of decision making. I also note that the issue is not just one of the collective agreement. Presumably if the Board could, not resolve its o%~ position on a section of the Collective Agreement, the parties might even amend it - themselves. But the issue 'in Hicks involves the interrelationship of the Collective Agreement' ~nd the two statutes: the Public Service Act and its Regulations and the Crown' Employees Collective Bargaining Act. Conceivably an inability of this Board to give a clear answer might be ultimately curable only by an amendment to either the legislation or the regulations. I'could not venture to'predict how the courts ultimately may speak.- They may decide that this Board is entitled to deference on these issues as being the very issues which it was constituted to decide: that is the very questions of Zact and law for ~hich a specialized tribunal was necessary. On the other hand, it may simply apply a correctness test as ~inistry Counsel argued. But whether this tribunal has the final decision (subject to reasonability of course) or not, it does at least have the first decision to make and it is argued that it has not given a clear .one. At least, that is what the union argues. It may be even in the interests of the reviewing courts to know whether the Board itself has taken a definite position. This is not the same situation as one where the board definitely decides a specific issue, that issue is subsequently brought for review before the court, and before it decides, another grievor wants the board to apply its decision in his favour. ?~atever the merits of awaiting a court determination in that situation, that is. not our case: we arguably have two conflicting authorities. In my opinion, this Board has'~ an obligation to try to clarify its own jurisprudence. Mr. Shime in Blake has proposed one approach. Clearly a situation where the Board has created any doubt as to what its interpretation of an issue is represents an important exceptional circumstance where the Board must at least hear argument on its o~,n~ jurisprudence'. In any event, it is now clear ~ that there will be other Board decisions on this ~ssue almost certainly prior to final court determination, namely in Bressette and in McClellan.. Accordingly, I am for all of these reasons unprepared to adjourn these proceedings pending the ultimate decisions by the courts in Hicks and Beresford. Therefore, dismiss the motion for an adjournment and direct a date for continuation be set by the Registrar. Dated at Toronto, Ontario this .21 day of ~u~e , 1989 /1 ~/.. ~ . · [~"~ ~ ~. ~ ,~' ~.~., P. Klym, Member A. Merri=t, Member