The URL can be used to link to this page

Home My WebLink About1992-1294.Union.97-04-18 .. .. ONTARIO EMPLOYES DE LA CO/JRQNNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MsG 1Z8 TEI.EPHONErrELEPHONE (4115) 3215-1388 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (41tJ) 326-1396 GSB # 1294/92, 1526/91 OPSEU # MBC-U474, MNR-U628 IN THE HATTER OP AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Management Board Secretariat/ Ministry of Natural Resources) Employer BEFORE: w. Kaplan vice-Chairperson M. Vorster Member F. Collict Member FOR THE H Law GRIEVOR Negotiator COllective Bargaining Department ontario PUblic Service Employees Union FOR THE P. Toop EMPLOYER Policy Advisor Employee Relations Board Management Board secretariat FOR THE M. Reynolds THIRD PARTY HEARING March 12, 1997 i ( ( ~ '> 2 Introduction In September 1995, this panel of the Board Issued reasons for decision in an important case involving, among other things, the seniority rights of a significant number of employees Those reasons set out in some detail the underlying facts of the case, one In which a large number of third parties, having been notified of their rights to legal counsel, attended and participated In with the assistance of a lawyer In February 1996, Peter Straszynskl, the lawyer for the third partIes, contacted the Board and asked that a hearing be convened, or written submissions received, wIth respect to a request from his client, Mr Mark Reynolds, one of the third parties, that Mr Reynolds be reimbursed by the union for his legal fees This matter proceeded to a hearing in March 1997 at which time submissions and argument were heard In brief, Mr Reynolds, who now appeared on his own behalf, took the position that the third parties should be reimbursed for legal fees in the amount of $12,494 54, and he submitted a copy of an account for that amount from Mr Straszynski Although much of this amount has already been paId, Mr Reynolds advised the Board that contributors were mformed, when they contributed, that they would be reimbursed if he was successful in securing payment from the union And in that regard, Mr Reynolds made a number of submissions in support of hiS request. M r Reynolds began by notmg that he and the other third parties had been advised of theIr nght to appear In thtS proceeding and to be represented by counsel That notIfication did not, he observed, indicate that the i ( ( "" 3 j representation would be at his own expense When he asked the union to pay for his counsel dunng the proceedings, the answer he received was no There was, in Mr Reynold's view, simply no way that he and the other third parties could have meaningfully participated in this case without a lawyer, and in Mr Reynold's submission, the dictates of natural justice, not to mention ordinary fairness, reqUired, if the union was gOing to be against him and the other third parties, as it was in thiS case, that It pay for their lawyer Moreover, and referring to the union constitutIon, Mr Reynolds took the position that-that document guaranteed him and his COlleagues legal representation For a/l these reasons, and others, Mr Reynolds asked that the Board direct the union to reimburse the legal costs For its part, the union took the position that while the Board possessed the remedial power to order payment of legal costs, such an order should be reserved for exceptIonal circumstances, circumstances which were certainly not present in this case Union counsel noted that It is not the practice of arbitration boards to award costs, and that thiS was not an appropriate case to depart from well-known and Widely-accepted practices Moreover, the union took the positIon that the Board derived its jurisdiction from statute, and from the collective agreement, not from the union's constitution, and it could not, therefore, base its decision on any provision of that constitution assummg for the sake of argument that there was a relevant provision While the request was for the union to pay the costs, Mr Toop, on behalf of management, also took the pOSition that while the Board probably had the remedIal power to award costs m general, thIS case, in particular, was not ; ( ( I ,... . \ 4 the one in which to do so Employer counsel also noted there was no request for this remedy prior to the conclusion of the proceedings and, it was therefore arguable that the Board did not have jurisdiction to award costs as it was functus Decision Having carefully considered the submissions and arguments of the parties, we have come to the conclusion that Mr Reynold's request must be denied While we are of the view that, In the appropriate case, our remedial power is such that we could award costs, this is not, in our view, an appropriate case to do so The earlier proceeding was one between the parties the union and the employer Third party interests were at issue and potential third parties were, on the Board's direction, notified of their right to partiCIpate and their fight to be represented by a lawyer Nothing in that notIfication or elsewhere offered the third parties who decided to join with Mr Reynolds in retaining counsel any prospect or promise that their legal fees would be paid In addition, no request for a direction that the union pay third party costs was made In final argument and it IS, as employer counsel suggested in his submission, arguable, to say the least, that the Board IS now functus Insofar as exercIsing any jurisdiction to order costs However, even if we continue to have jurisdiction in that respect, we choose not to exercise It in this case The requirements of natural justice and procedural fairness reqUire that third parties and potential third parties be gIven notice of proceedings that will or may affect their rights r I - . .. ( ( 5 ~ - That was done and some of the third parties were represented by Mr Straszynski and participated fully in the proceedmgs The requirements of natural Justice and procedural fairness do not require that third part1es and potential third parties have their legal fees paid by one of the parties to the proceeding It was Mr Reynold's choice, and-that of his colleagues, to retain counsel, and while they were certainly entitled to make that choice, they had no reason to believe, or reasonably expect, reimbursement for legal fees Indeed, when Mr Reynolds made such a request to the union it was summarily rejected It should be pomted out that It is well~accepted in the authorities, and a number of them were provided to us by the union and employer, that costs are only awarded in exceptional circumstances, and the circumstances of this case do not fall within the narrow range of cases where it appears that costs have been awarded in the past. It is also noteworthy in this case that the interests of the employer and the third partIes was the same And, for whatever this observatIon is worth, whatever the provisions of the OPSEU ~, constitution may be, this Board is not the place to go for their enforcement. Accordingly, and for the foregoing reasons, Mr Reynold's request is denied I . ~ i ~ . . 6 0 DA TED at Toronto thIS 18th day of April, 1997 !~ Wilham Kaplan Vice-Chairperson O~J 0LJ I Fred"Collict Employer Nominee ~ Menna Vorster Union Nominee