HomeMy WebLinkAbout1991-0547.Blomme.92-02-20 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES OE L 'ONTARIO
GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
~ BOARD DES GRIEFS
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547/91
ZN THE NATTBR OF I~N ~RBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Blomme) "
Grtevor
The Crown in Right of Ontario
(Ministry of Housing)
~mployer
BEFORE: M. Gorsky Vice-Chairperson
I. Thomson Member
D. Daugharty Member
FOR THE I. Anderson
GRIEFOR Counsel
Scott & Aylen
Barristers & Solicitors
FOR THE P. Young
EMPLOYER Counsel
winkler, Filion & Wakely
Barristers & Solicitors
~RARING December 10, 1991
1
iNTERIM DECISION
The grievance of Arthur Blomme, dated March 25, 1991, states:
"I strongly believe that I am improperly classified at my current
System Officer 2 level," and the Grievor requests: "Upon initial
investigation a reclassification at a level of System Officer 4 or
other suitable classification .... " At tab 3 of the Employer's
book of exhibits is a document dated August 2, 1991 filed by the
solicitors for the Union, setting out a statement of facts entitled
"Statement of Claim" with respect to the Grievor's position. At
the opening of the hearing, Mr. Anderson, counsel for the Grievor,
indicated that he wished to amend paragraph 5 of the noted
~tatement, which in its unamended form reads:
In addition to his above duties as a programmer, the
grievor also works as an administrative systems analyst
managing the operation of the Local Area Network (LAN).
As such, he performs the duties and possesses the skills
and knowledge of the alternative position also classified
as Systems Officer 2 and described by paragraphs 5
through 8 on page 2 of the class standard. However,
contrary to paragraph 6, the grievor does not perform his
LAN administrator duties under the general supervision of
a more senior analyst or administrative systems manager.
Rather he answers to the Director, Mr. Stonehouse.
Counsel for the Union wished to amend paragraph 5 of the
Union's statement by deleting the words:
As such, he performs the duties and possesses the skills
and knowledge of the alternative position also classified
as Systems Officer 2 and described by paragraphs 5
through 8 on page 2 of the class standard. However,
contrary to paragraph 6
2
and by adding language so that the paragraph would now read:
In addition to his above duties as a progranm~er, the
grievor also works as an administrative systems analyst
managing the operation of the Local Area Network (LAN).
It is the position of the Union that there is no position
under the SO2 classification which describes the work
performed by the grievor 'with respect to LAN. The
grievor does not perform his LAN administrator duties
under the general supervision of a more senior analyst or
administrative systems manager. Rather he answers to the
Director Mr. Stonehouse.
By letter dated December 10, 1991, Mr. Anderson adw~sed Mr.
Young:
Without prejudice to the Union's position that the
"Statement of Claim", filed'on behalf of the grievor, in
this matter, in no way binds the Union in its
presentation of its case before the Grievance Settlement
Board, please be advised that paragraph 2, of the
"Statement of Claim", is hereby further amended to read
as follows:
"The grievor's position should be reclassified, for
example, to a Systems Officer 3, or alternatively,
to an appropriate classification to be found or
created by the employer. The grievor also .requests
full retroactivity to November, 1990, when he first
took steps to have ~his position reclassified,
together with interest".
Paragraph 2 in the Union's statement previously read:
As of the date of the grievance, the grievor's position
should be reclassified, for example to Systems Officer 3
or, alternatively, to an appropriate classification to be
found or created by the employer. The grievor also
requests full retroactivity to a date 20 days before the
filing of the grievance together with interest.
Mr. Young objected to our allowing the two amendments sought
to the Union's statement and submitted that it ought to be
3
precluded from resiling from them. It was acknowledged by Mr.
Anderson that no indication had been given to the Employer that the
Union was not content with its statement until the opening of the
hearing.
We propose to deal with Mr. Young's objection made at the
hearin'g to the first requested amendment, as well as his objection
to the further requested amendment as set out in his written
submissions to the Board dated December 13, 1991.
The Employe~'s position was: "that the Union ought not to be
allowed to amend its statement to resile from what is, in the
Employer's submission, an ~dmission against interest and t.o
fundamentally change its case. If the Board were to allow the
amendments proposed by the Union it would allow the Union to raise
an entire set of issues which clearly had not been addressed by the
parties in the grievance procedure and which would fundamentaltv
change the case before the Board."
The Union's statement as well as the Employer's reply to it
arise out of certain agreements recorded in a memorandum dated
September 16, 1988, from Owen B, Shime, the Chairperson of the
Board, addressed to all Vice-Chairpersons and all Members of the
Grievance Settlement Board on the subject of "Classification
Cases," the relevant portions of which are as follows:
On July 6, 1988, I met with the unions and
representatives of the Ministries to administ~atively
deal with the classification cases that were outstanding.
In the course of the meeting we made progress in a number
of areas:
2. The parties also indicated that they would attempt
to file documents in order to shorten the
proceedings. The Union indicated it would attempt
to file a two-part document indicating:
(a) those duties and responsib~Llities
performed by~ the grievor and
(b) those duties and responsibilities which
the grievor alleged had placed him/her in
a higher classification.
3. The employer also agreed to file:
(a) a position specification
(b) a reply to the union's document stating
those duties and responsibilities of the
grievor, that the employer admitted and
(c) generally indicating where the employer
disagreed with the grievor
Hopefully, the filing of these documents will
achieve some agreement on the duties and
responsibilities of employees who are claiming a
classification change as well as indicating the
areas of disagreement. These documents should
assist in narrowing the issues and shortening the
hearings.
4. A Grievance Settlement Officer has been made
available to the parties in an attempt to develop a
more cohesive system for filing of statements in
these cases.
5. All of the above will ibe on an experimental basis
with the hope of shortening the classification
cases. Accordingly, where you are hearing a
classification case an inquiry should be made as to
whether the parties have filed documents (in the
classification cases proceeding on that bas. is). I
note that not all classification cases are
proceeding on that basis, If the documents have
been filed, an attempt should be made to get an
agreed statement of facts and to proceed to hear
evidence only with respect to the differences on
matters in issue between the parties.
The statements of the Union and the Employer in this case
represent an attempt by the parties to follow the provisions of
paragraphs 2 and 3 of the memorandum, as well as the portion of
paragraph 5 dealing with the obtaining of an agreed statement of
facts.
The portions of paragraph 5 of the Union's statement that it
now wishes to amend, from the Employer's perspective, represents a
statement agreed to, and it regards them as amounting to an
admission against interest that binds the Union and which cannot be
~mended.
The Employer relied upon Re Bouchard and Ministry of the
Environment, 467/83 (Roberts). In the Bouchard case, at p.1, the
union indicated, at the outset of the hearing, that the grievor
wished to amend the settlement requested in his grievance:
Originally, the Grievor -- who was grieving that he was
improperly classified as an Environmental Technician 3 --
claimed the classification of Environmental Technician 4.
By virtue of the amendment, this claim would have been
replaced by one directed toward an entirely different
classification in a different class series, the
classification of Systems officer 2.
The Employer objected to the amendment, and on the request of both
parties the Board decided the preliminary issue before proceeding
to hear evidence on the merits of the case.
6
In rejecting the amendment the Board stated, at pp. ].-2 :
To do so would be to effect a material change in the
substance of the grievance, a change which never ]lad been
dealt with by the parties at any stage of the formal
grievance procedure. It was undisputed that the
classification of Systems Officer 2 was in a completely
different class series and different category from the
classification of Environmental Technician 4. The two
classifications were not even related in terms of salary
negotiations.
At p. 2 of the decision, the Board stated:
There was no precedent to support allowing such a drastic
amendment to a classification grievance. In f@ct, the
authorities cited by the parties supported reaching the
opposite conclusion. In Re Dashfield and Ministry of
Community and Social Services, G.S.B. ~333/80 (Delisle),
the Board rejected a similar attempt to amend a grievance
to claim a classification in a different class series.
See id. at 2. In Re Price and Ministry o~ Community and
Social Services, G.S.B. ~25/81 (Verity), the Board
stated, in pertinent part, "In our view, it would be
improper to allow an amendment requesting an entirely
different classification series from that set out in the
grievance form." Id. at 6.
It was the Employer's submission in the case before us:: "that
the two amendments which the Union seeks to make in this case do
constitut~ a drastic and material change in the substance of the
grievance by putting in dispute new issues which had clearly never
been addressed by the parties before." In the case before us, in
the absence of evidence being adduced, we are not now in a position
to know what matters were, in fact, previously addressed by the
parties during the grievance procedure. In the grievance, itself,
there is no indication as to the extent of monetary relief sought.
The statement contained in paragraph 2 of the Union's statement
with respect to retroactivity was made after the matter had been
7
referred to arbitration, as were the statements contained in
paragraph 5. We are not dealing, here, with such a situation as
existed in Bouchard, where the amendment requested was with respect
to a statement contained in the grievance. No such change is here
requested and, in any event, we would not regard a change in the
claim with respect to retroactivity as being so fundamental as "to
effect a material change in the substance of the grievance."
Counsel for the Employer also relied upon Heffering and the
Ministry of Consumer and Commercial R~lations, 504/80 (Detisle).
In that case, the grievor had been unsuccessful in a job
competition for a Clerk 5 General position (Senior Title Records
Analyst). At the time the vacancy was posted, the grievor was an
acting Clerk 5, General as Deputy Land Titles Registrar. He had'
applied for two posted vacancies at the Clerk 5, General level and
was unsuccessful. She was advised at the time that if she was
unsuccessful she would be cut back in pay to Clerk 4, General as
her then existing job was being eliminated. Counsel for the
grievor in that case characterized her complaint as being with the
entire process of denying her the vacancy and then demoting her. He
maintained that at the time of the posting the grievor, though not
officially designated a Clerk 5, General, was legally entitled to
be treated as a Clerk 5, General and, accordingly, had certain
"bumping rights" when her position was eliminated and should have
been simply transferred to one of the new vacant positions without
8
the necessity of competing with the others for promotion, and
counsel proposed to lead evidence on that theory.
Counsel for the employer in Hefferinq claimed to have been
taken by surprise by this characterization as he had come to the
hearing prepared to dispute a straight-forward promotion.-posting
grievance,
At p.3 of the Heffering case, the Board stated that the issue
before it was: "Whether the grievor Can proceed at all with this
grievance along the line of attack that has been chosen." The
Board stated at p.4:
... to accommodate the grievor's present allegations
within this grievance would require more than simply a
technical enlargement of form; it would require a very
real change in substance. The Board recognizes that it
must not strictly construe the grievance but also
recognizes the necessity of giving some meaning to the
words chosen by the partias. In fairness to both sides
and their preparation and presentation and to assist the
Board in understanding and resolving the real dispute
between the parties, that dispute must be framed with
some accuracy.
The Board ruled that the grievor could not proceed with the newly
raised claim.
The Board repeats its earlier observation that the amendment
being sought is not to the grievance but to the Union's statement
prepared ~n accordance with the memorandum of the chairperson~
above set out.
9
Counsel for the Employer also relied on Houghton and the
Ministry of Correctional Services, 771/88 (Knopf), where the Board
refused to allow the grievor to expand a grievance concerning an
improper assignement of duties to encompass certain health and
safety concerns. There the Board stated at pp.4-5:
It is the opinion of this panel that Steps 1 and 2 of the
grievance process are extremely important for the proper
resolution of the complaints. This grievance, as
processed, could not give effect to that mechanism of
dispute resolution because the substance of the complaint
was not revealed to the Employer at the crucial early
stages.
Counsel for the Employer also relied on Gwin and Liquor Control
Board of Ontario, 27/83 (Draper), to the same effect.
In all of the G.S.B. cases relied upon by counsel for the
Employer, the Board refused to permit the Union to depart from the
position as stated in the ~rievance and maintained through the
grievance procedure. In the case before us there is yet no
evidence before us of any change in position from the date of the
filing of the grievance through the various stages of the grievance
procedure. There was a suggestion in counsel for the Employer's
argument that this was the case, and we would expect that if this
subject is to be pursued we will hear evidence on it at the
continuation of the hearing. What is being alleged, and what we are
now in a position to rule on, is that a change in position was
being taken in the Union's statement which should not be permitted,
l0
The Employer also relied upon a private sector case: Re Beaver
Lumber Co. Limited (Beaver Homes Division) (1976), 14 L.A.C. (2d)
93 (Norman). In that case the grievor had been unsuccessful in a
job competition and grieved. Throughout the grievance p~ocedure
the company's position was that the grievor did not have the
necessary skills to perform the work of the job in question. At
the hearing, the company endeavoured to change its position arguing
that the grievor had "opted out" of the job competition by taking
a leave of absence to further his education. The basis for the
Board's decision in Beaver is'set out at p,97:
... To do otherwise would be to frustrate the grievance
process which is surely designed to enable the parties to
resolve the real issue between them at the earliest
possible moment in a mutually acceptable manner, and
would, in the case at hand, amount to an endorsation of
a practice which might well have misled the union to
fruitlessly process the grievance to arbitration.
The Beaver case is yet another example of bo~trds of
arbitration being unwilling to permit a party to unilaterally
change the essence of the issues before the Board by altering their
position from the one taken in the during the course of the
grievance procedure.
Our having distinguished the cases relied upon by counsel for
the Employer does not end the matter. Although Mr. Young rightly
observes that to permit the Union to resile from a position taken
on behalf of the Grievor in the grievance or during the grievance
procedure "would undermine the integrity of the grievance process,"
the problem for us to decide is a different one: whether permitting
11
the Union to amend its statement is an impermissible attempt to
resile from a binding agreement relating to its position.
As a result of the meeting described in Chairperson Shime's
memorandum, a salutory change occurred in the way in which
classification cases were dealt with. The documents which are now
frequently filed pursuant to paragraphs 2 and 3 of the memorandum
and the documents referred to in paragraph 5, serve to clarify the
factual dispute between parties to grievances and frequently lead
to agreed statements of fact that allow the parties to concentrate
on the differences between them with respect to the matters in
issue. If the parties could file statements pursuant to the
memorandum and then amend them without consent and without any
restrictions being imposed the integrity of the arbitration process
would be seriously undermined, just as the grievance procedure
would be seriously undermined if changes could be made with
impunity in the positions taken by a party during the grievance
procedure. However, as has been noted above, there is a difference
between the two situations. Here, we are not concerned with any
change being made by the Union in its position taken in the
grievance or during the grievance procedure. The amendment
attempted to be made to paragraph 5 of the Union's statement
involves an attempt to change a statement with respect to which the
Employer did not take issue. Counsel for the Employer argues that
once this position is taken it cannot be changed.
12
A statement contained either in the Union or Employer's
statement may amount to an admission, and any attempt to amend a
statement at the opening of the hearing would require the
demonstration of extraordinary circumstances before per,mitring
evidence to be led that conflicts with the original statement.
Here, no evidence has yet been called. To rely on an analogy, the
statements are in many respects similar to pleadings in
conventional civil litigation governed by the Rules of Civil
Procedure, although they go somewhat beyond statements of material
fact. They are also similair admissions made in conventional civil
litigation (in pleadings or elsewhere). As in the case of
conventional civil litigation, an admission on a matter allows the
opposite party to rely on it, and admissions can sometimes lead to
the awarding of judgment in favour of the beneficiary of the
admission. Sometimes the justice of a case requires that a party
be held to an admission. On other 'occasions, where it can be
demonstrated that an admission was as a result of inadvertence or
oversight, especially where the reques~ for amendment is made prior
to the hearing of evidence, an amendment may be allowed subject to
a reasonable opportunity being given to the opposite party to
prepare to meet the position presented by the amendment.
Although the Board is not subject .to the Rules of Civil
Procedure, they can sometimes furnish guidance. Rule 51.05
provides:
An admission made ... in a pleading may be withdrawn on
consent or with leave of the court.
13
.Rule 51.05 must be read along with rule 26.01:
On motion at any stage of an action the court shall grant
leave to amend a pleading on such terms as are just,
unless prejudice would result that cannot be compensated
for by costs or an adjournment.
In Philmor Developments (Richmond Hill) Ltd. v. Steinberg
(1986), 4 W.D.C.P. 91 {Ont. Master), it was held that rule 26.01
did not override rule 51.05 and that a proposed amendment which
amounted to a withdrawal of an admission must be supported by
material showing: (1) the proposed amendment raised a triable
issue; (2) the admission was made inadvertently or the solicitor
was wrongfully instructed; and (3) the withdrawal of the admission
will not cause injustice to other parties (it being understood that
there is no injustice if the other parties can be compensated by
costs). The portion of the judgment that has significance in the
case before us concerns the situation where the admission was made
inadvertently or the solicitor was wrongfully instructed and the
withdrawal will not cause injustice.
Counsel for the Union argued that the memorandum of the
Chairperson described a voluntary practice with no consequences
being visited upon either party for failure to "exchange such a
document." We were urged to find that as this was the case a party
could, with impunity, amend its statement "unless to do so would
result in a change in the nature of the grievance." Although the
submission of a document pursuant to the Chairperson's memorandum
is not mandatory, having chosen to comply with what may be viewed
14
as a non-binding directive a party cannot rely on the fact that it
did not have to do so. The parties have on numerous occasions
recognized the good sense in complying w~th the procedures
described in the memorandum. In the absence of their doing so
classification cases are often unnecessarily protracted and give
rise to much frustration and rancour. Where a party makes a
voluntary statement that was intentionally made it ought to be held
to what it has said except in extraordinary circumstances.
Before ruling on the right of the Union to amend paragraph 5
of its statement it would be necessary for us to hear evidence so
as to be able to decide whether the admission was made
inadvertently or that the then solicitor for the Union was
wrongfully instructed. Even if it is established that the
admission was made inadvertently or that the solicitor was
wrongfully instructed, the Employer should have an opportunity of
adducing evidence to show that an injustice has been done to it
which cannot be overcome by granting a suitable delay in order for
it to prepare its case based on the amended statement. In
Machinefabriek D. Bart & Z.N.B.V, v. Roberts Welding & Fabricatin_~
Limited (1985), 7 C.P.C. (2d) ]23 (Ont~. Master), the ~a~ter refused
to permit an amendment to a pleading withdrawing an admission where
a key witness for the opposinq party had become uncooperative.
The Union will have to decide whether it wishes to call
evidence to establish that the admission in paragraph 5 was made
15
inadvertently or that its then solicitor was wrongfully instructed.
We would expect to be notified as to the intention of the Union in
this regard within two weeks from the date hereof in order that we
can notify the Registrar as to the status of this matter.
In Roebuck and Syndicated Shopping Centres Inc. f1985), 52
O.R. (2d) 265 (H.C.), leave was granted to amend a notice of
application to claim additional relief where no prejudice would
result that could not be compensated by costs and an
adjournment. In Rowan v. Landriault (1975), 2 C.P.C. 25 (Ont. Co.
Ct.), the plaintiff was permitted to increase the damages claimed.
In the case before us the prejudice to the Employer can be overcome
by an adjournment. The reference to costs in the court cases, of
course, has no relevance to these proceedings. As noted above, we
have no evidence, at this time, as to whether the claim for
retroactivity requested by way of amendment represents a change in
the Union's position taken during the course of the grievance
procedure. Our ruling is limited to the right to amend the claim
as stated in the original Union statement, and our ruling is
subject to any further application that may be made by the Employer
with respect to an alleged alteration of the Union's position taken
during the course of the grievance procedure.
Counsel for the Union argued that this was a continuing
grievance, and that if he was not permitted to make the amendments
requested he would have "to consider withdrawing and refiling the
16
grievance in order to ensure that the full substance of [the
Grievor's] complaint might be dealt with by another Board." Even if
this were so, there would remain an outstanding question as to the
status of the Union's satement: Do. statements contained in it
represent admissions that are binding in cases other tha~ the one
for which the statement was prepared?
It would be unfortunate if concerns about being bound bv
satements made caused parties to refrain from voluntarily following
the procedures described in the Chairperson's memorandum. If
statements are intentionally made (that is, not through
inadvertance) and if there was no error made in instructing
counsel, why should it not be treated as an admission that the
party accepts what it has represented 'to be true? Clearly 'there is
no prejudice, to a party who can amend upon showing that the
statement was made through inadvertance, or that counsel was not
properly instructed. The absence of most discovery devices
available in conventional civil litigation requires reasonable
adaptations to be made in the case of .arbitration to make hearings
fair to all parties and to enable the facts to be adduced with as
little impediment as possible so that cases can be heard within a
reasonable time. In order to achieve this purpose such voluntary
procedures as are described in the chairperson's memorandum were
developed. If the parties cannot rely on the statements made in the
documents delivered by them unless they choose to bound b'v them,
the purpose of making such statements will be greatly undermined.
17
If the statements could be amended as easily as is suggested
by counsal for the Union, then any party who has filed a statement
ought to be able to resile from any part of it at any time prior
the the completion of the hearing without having to demonstrate
that a proper basis exists .for doing so. When the parties to a
grievance agree to comply with the memorandum, they do so in the
expection that their statement will be' relied upon by the other
side. The binding effect of a statement made in the documents does
not change depending on whether the attempt to amend is made at the
beginning of the hearing or at a point in time after the.'hearing
has commenced and evidence has been adduced, except that in the
latter case it is more likely that prejudice may exist that cannot
be taken care of by an adjournment.
Dated at Toronto this 20th day of 'February, 1992.
.--~.-"~m~ ,i ' '
M. Gorsky - Vice Chairperson
~lb/Thomson - Member
D. Daugharty - Member