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HomeMy WebLinkAbout1996-2007.Harju.99-12-07 Decision ()NTARI() EMPUJYES DE LA (;()['R()NNE (;R( JWN EMPU JYEES DE L'()NTARI() GRIEVANCE COMMISSION DE -- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB # 2007/96 OPSEU # 96G356 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GmEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees UnIon (HaIJu) Grievor - and - The Crown In RIght ofOntano (Mimstry of Transportauon) Employer BEFORE Owen V Gray Vice ChaIT FOR THE M. MacKmnon GmEVOR Counsel, Bode & MacKmnon Bamsters & SOlICItorS FOR THE Kelly Burke EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING September 21 1999 DECISION [1] The gnevance before me was filed by the gnevor Ronald HarJu, on Sep tember 16 1996 It complamed of faIlure by the employer to provIde Supplemen tary Health and HospItal Insurance benefits to whIch the gnevor claIms he and hIS wIfe VIckIe were entItled wIth respect to her health needs He IS seekmg re Imbursement of expendItures he and hIS wIfe mcurred to provIde for those needs A claIm for such expendItures was reJected by the employer's msurance carner m June 1995 The gnevance concerns those and subsequent expendItures ThIs decI SIOn addresses prelImmary Issues about whether and to what extent thIS Board should or can deal wIth thIS gnevance on ItS ments, havmg regard to the tIme when It was filed and the relevant collectIve agreement prOVISIOns Those Issues were argued on the basIs of an Agreed Statement of Fact [2] The partIes Agreed Statement of Fact mcludes the followmg concermng the msurance coverage and the gnevor's claIm 2. BasIc LIfe Insurance and Supplementary Health and HospItal Insurance IS provIded to (lPSEU bargammg umt employees by way of a polIcy known as GL & GH 15900 The msurance carner IS ManulIfe FmancIaI Group heremafter referred to as ManulIfe 3. The Supplementary Health and HospItal Insurance coverage IS descnbed at page 27 of the polIcy ThIs sectIon of the plan IdentIfies the mechcal treatment devIces, serVIces and lImItatIOns of the Plan. RepresentatIves for the Employer and (lPSEU on the Jomt Insurance Benefits RevIew CommIttee, heremafter referred to as JIBRC" reVIew the supplementary health and hospItal msurance lIst of LIberalIzatIOns on an ongomg basIs, and together they propose amendments thereto 4. In 1978 the gnevor s wIfe VIckI HarJu, was mvolved m an accIdent whIch reqUIred that she be gIVen an artIficIal stomach. She has had numerous abdommal surgenes smce that tIme. Her conchtIOn, as of 1995 reqUIres that she reCeIve Total Parenteral NutntIOn (TPN) m whIch she reCeIves all of her nutntIOn through a shunt mserted mto her chest, m the form of lIqulCl foods, amIno aCIds, vItamIns and mInerals, admInIstered VIa an ID fusIOn pump 5. The gnevor and hIS wIfe used theIr own funds to set up a TPN system m theIr home although the treatment IS avmlable at the hospItal. If the treatment IS receIved at the hospItal, It IS covered by the (lntarIO Health Insurance Plan (( lHIP) From 1995 to 1999 they have contmued to use theIr funds for ongomg mamtenance and supplIes for thIS system together wIth other mCldental mechcal eqUIpment and supplIes for VIckI HarJu. The gnevor has also receIved funchng from varIOUS sources to cover a portIOn of the costs mcurred to provIde the treatment for hIS wIfe 2 6. In 1995 the gnevor filed a claIm WIth ManulIfe for reImbursement of the mItIal TPN costs and the supplv costs he had mcurred to that date Bv wav of a letter dated June 9 1995 ManulIfe advIsed the gnevor that hIS plan covers a portIOn of the cost of mfusIOn pumps for chabetIc patIents onlv and that hIS wIfe was not elIgIble for the mfusIOn pump and supplIes due to the chagnosIs receIved bv the msurance carner [3] When the gnevor's msurance claIm was reJected by the msurer m 1995 the collectIve agreement prOVISIOns that governed hIS employment were those of the expIred 1992 93 collectIve agreement They contamed these specIal provIsIOns for dealmg wIth an employee s complamt about a demal of msurance benefits INSURED BENEFITS GRIEVANCE 2791 Where an employee has a complamt that he has been demed benefits pursuant to the msured benefits plans specIfied m ArtIcles 40 41 42 44 and 57 he shall first chscuss the complamt wIth hIS supervIsor wIthm twenty (20) days of first becommg aware of the complamt. 2792 (a) If the complamt IS not satIsfactonly resolved by the supervIsor wIthm seven (7) days of the chscussIOn, the employee may refer the complamt, m wntmg to the Jomt Insurance Benefits RevIew CommIttee establIshed m AppendIx 5 and addressed to the Com pensatIOn Programs Branch, Management Board Secretanat, wIthm an adchtIOnal ten (10) days. (b) Any referral to the Jomt Insurance Benefits RevIew CommIttee under 279 2(a) shall mclude a release of mformatIOn form (Appen chx 6) completed, sIgned and dated by the employee. (c) The Jomt Insurance Benefits RevIew CommIttee shall conslCler the complamt and the CompensatIOn Programs Branch shall gIVe the employee ItS decIsIon m wntmg wIthm SIXty (60) days of the commIttee meetmg at whIch the complamt IS chscussed. 279 '3 (a) If the complamt IS not satIsfactonly resolved under 2792 the employee may file a gnevance m wntmg wIth the DIrector En ployee RelatIOns Branch or hIS desIgnee wIthm seven (7) days of the date he receIved the decIsIOn under 27 9 2(c) In the event that no decIsIOn In wntIng IS receIved In accordance wIth the specIfied tIme lImIts m 279 2(c) the gnevor may submIt the gnevance to the DIrector Employee RelatIOns Branch wIthm seven (7) days of the date that the CompensatIOn Programs Branch was reqUIred to gIVe ItS decIsIOn m wntmg m accordance wIth 27 9 2(c) (b) A submIssIOn of the gnevance to the DIrector Employee RelatIOns Branch or hIS desIgnee under thIS sectIOn shall be conslClered to be the second stage of the gnevance procedure for the purpose of thIS ArtIcle [4] There IS no Issue between the partIes concermng comphance wIth ArtIcle 279 1 The gnevor's complamt was referred to the partIes Jomt Insurance Bene fits RevIew CommIttee ("JIBRC") m June 1995 as contemplated by paragraphs (a) and (b) of ArtIcle 27 9 2 In that respect, the partIes agree as follows 3 1. For purposes of clanty references to the red collectIve agreement refer to the collectIve agreement between Management Board of Cabmet and Ontano PublIc ServIce Employees UnIon dated January 1 1994 to Th- cember 31 1998 whIle references to the green collectIve agreement re- fer to the one dated January 1 1992 to December 31 1993 8. Accordmg to the JIBRC Mmutes, Mr Harju filed a complamt under ArtI cle 27 9 2 of the green collectIve agreement that he had been denIed ID surance benefits. The gnevor lodged hIS complamt by way of a standard ()PSEU gnevance form dated June 16 1995 The statement on the gnev ance reads as follows: I gneve that the emplover has not sllPphed the bene fits of Total Home Parenteral '\ lltntwn Eqlllpment as needed. Mr Harju understood that the matter had been processed as a gnevance and as a complamt to JIBRC 9 The gnevance form copIes whIch are to be provIded to management at Stages 1 2 and 3 of the gnevance process were never provIded to the employer and remam m Mr Harju s JIBRC file at ()PSEU In adchtIOn, the gnevance dated June 16 1995 was not processed by ()PSEU m accor dance wIth the gnevance procedure under the green or the red collectIve agreement and was never referred to the Gnevance Settlement Board. (The complamt IS attached at TAB 5) 10 By way of a Memorandum dated June 16 1995 VIC WIllIams, OPSEU Staff RepresentatIve from Thunder Bay RegIOnal ()ffice confirmed hIS undertak mg to forward the gnevance form AppendIx and related correspondence pertammg to Insurance Benefits Complamt (Gnevance) of Ronald HarJu, Local 706" and asked KIm Porter to arrange to have the mformatIOn pre- sented to the JIBRC on June 23 1995 11. By way of a letter dated June 20 1995 OPSEU acknowledged receIpt of the gnevor s claIm for Supplementary Health and HospItal benefits. In the saId letter ()PSEU also advIsed Mr Harju to chscuss the matter wIth hIS supervIsor and to refer hIS complamt to Lmda Mahaney from the JIBRC Benefits and PensIOns SectIOn If the matter was not resolved wlthm 7 days of that chscussIOn. ()PSEU also acknowledged receIpt of Mr Harju s completed AppendIx 6 form. 12. By way of a letter dated June 20 1995 MarcIa GIllespIe, ()PSEU Benefits Counsellor forwarded an AppendIx 6 Release of InformatIOn Form to Lmda Mahaney SenIor Benefits ()fficer wIth Management Board of CabI net, pursuant to artIcle 27 9 2 (b) of the collectIve agreement. 13. By way of a letter dated June 20 1995 Lmda Mahaney acknowledged re- CeIpt of the gnevor s complamt concernmg the denIal of Supplementary Health and HospItal benefits. She advIsed that hIS appeal would be placed on the Agenda of JIBRC meetmg scheduled for June 23, 1995 14. [By letter dated June 20 1995] ()PSEU advIsed Mr Harju that hIS claIm was raIsed at the June 23 1995 JIBRC meetmg and will be raIsed agam at the next JIBRC meetmg 15 Accordmg to the JIBRC Mmutes, Mr Harju s claIm was first chscussed at JIBRC on June 23 1995 16 On August 31 1995 the Employer offered to cover 50% of the cost of the mfusIOn pump for Mrs. Harju to a maXImum of $100000 ThIs offer was m accordance wIth the benefit extended to chabetIcs and IS consIstent WIth 4 the LIberalIzatIOns. The Mmutes reveal that thIS offer was refused bv OPSEU on August 31, 1995 17 Between September 22 1995 and November 28 1995 the JIBRC contm ued to chscuss and reVIew the costs assocIated wIth Mrs. Harju s mechcal treatment. Accordmg to the Mmutes, on November 28 1995 ()PSEU ad- vIsed It would reVIew the matter and respond to the Emplover ()n Th- cember 15 1995 and Februarv 8 1996 OPSEU advIsed the Emplover that the matter was stIll under reVIew ()PSEU deferred the matter twentv (20) tImes between December 9 1996 and AprIl 13, 1999 18 At tImes, the Umon requests that a case be deferred to the next JIBRC meetmg for varIOUS reasons. (>ther tImes, deferral requests are not sup- ported bv explanatIOn bv the Umon. The Emplover generallv consents to these requests whether reasons for the deferral are provIded or not. 19 There are over 150 cases presentlv ongomg at the JIBRC 20 OPSEU has deferred Mr Harju s appeal at JIBRC smce November 28 1995 ()PSEU has not provIded a response to the JIBRC wIth respect to the outcome of ItS reVIew to date No decIsIOn was gIVen to the emplovee from the CompensatIOn Programs Branch pursuant to artIcle 27 9 2(c) of the green collectIve agreement because the matter was stIll under conslel- eratIOn bv ()PSEU The correspondence referred to m paragraphs 10 and 11 of the Agreed Statement of Fact was mternal to OPSEU or between OPSEU and the gnevor The letter re ferred to m paragraph 13 was from Ms Mahaney of the CompensatIOn ServIce Branch of Management Board Secretanat to the gnevor It told hIm that "As soon as a decIsIOn has been reached, you wIll be mformed As noted m paragraph 20 he was never mformed that there had been a decIsIOn. [5] Mr HarJu eventually filled out and filed another gnevance form allegmg a faIlure to provIde benefits That IS the gnevance dated September 16 1996 that IS now before me I shall not quote It At the hearmg of thIS matter the partIes agreed orally that thIS gnevance would have been understood to relate to the gnevor's ongmal and ongomg complamt about the faIlure to reImburse the ongI nal and ongomg expenses mvolved m the TPN program described m the Agreed Statement of Fact [6] Several months before the gnevance now before me was filed, the partIes had entered mto a new collectIve agreement, the one referred to m the partIes Agreed Statement of Fact as the "red collectIve agreement That agreement con tamed the followmg prOVISIOn. 80 1 ThIs Agreement covers the perIod from Januarv 1 1994, untIl Decem ber 31 1998 The effectIve dates of anv changes to the term of thIS 5 agreement from the prevIOUS agreement, unless otherwIse mchcated, shall be March 31 1996 The partIes agree that the word "term m the second sentence should be read as "terms and that the "prevIOus agreement was the 1992 93 agreement, referred to m the partIes Agreed Statement of Fact as the "green collectIve agreement Among the changes that came mto effect on March 31 1996 were changes to the specIal provIsIOns concernIng msured benefits gnevances The prOVISIOns of the green agreement quoted m paragraph [3] above were replaced wIth the followmg' 2291 An allegatIOn that the Emplover has not provIded an msured benefit that has been contracted for m thIS Agreement shall be pursued as a UnIon grIevance filed under ArtIcle 22.13 (UnIon GrIevance) 2292 Anv other complamt or chfference shall be referred to the ClaIms Re- VIew SubcommIttee of Jomt Insurance Benefits RevIew CommIttee (JIBRC) establIshed under AppendIx 4 (Jomt Insurance Benefits Th- VIew CommIttee) for resolutIOn. AppendIx 4 provIdes that the ClaIms RevIew SubcommIttee wIll consIst of two representatIves of the employer two representatIves of OPSEU and an mde pendent thIrd party agreed upon by both partIes It also provIdes that decIsIOns of the SubcommIttee are "final and bmdmg The partIes here agree that 22. Pursuant to artIcle 22 9 2 of the red collectIve agreement, anv complamt or dIfference other than a UnIon grIevance allegmg a faIlure bv the Em plover to provIde an msured benefits that has been contracted for m the agreement, shall be referred to the JIBRC for resolutIOn. If the matter IS not resolved before the JIBRC the matter mav be referred to the ClaIms RevIew SubcommIttee The SubcommIttee s mandate IS descrIbed at Item 6 of AppendIx 4. The SubcommIttee reVIews and makes decIsIOns on com plamts or chfferences mvolvmg the denIal of msured benefits under the collectIve agreement, when such Issues have not been resolved through the eXIstmg admmIstratIve procedures. DecIsIOns of the subcommIttee are final and bmdmg 23. The Clmms RevIew SubcommIttee has been establIshed under artIcle 2292 of the red collectIve agreement bv Terms of Referenced dated Julv 20 1999 The Preliminary Issues [7] The employer mItIally took the posItIOn that by vIrtue of ArtIcles 22 9 1 and 22 9 2 of the red collectIve agreement, the GSB was wIthout JunsdIctIOn to arbItrate thIS gnevance The UnIon conceded that the GSB IS wIthout JunsdIctIOn to arbItrate the gnevance m so far as It concerns an alleged faIlure to provIde 6 benefits contracted for m the red collectIve agreement The UnIon took the pOSI tIon, however that thIS Board does have the JunsdIctIOn to arbItrate the gnev ance m so far as It concerns alleged faIlure or faIlures to provIde contracted for benefits that occurred whIle the terms of the green collectIve agreement were m effect [8] The employer's response to the UnIon s charactenzatIOn of the gnevance as raIsmg a claIm under the terms of the green collectIve agreement IS that the GSB has no JunsdIctIOn to entertam a gnevance about an alleged breach of a collectIve agreement pnor to the one m effect at the tIme the gnevance was filed The UnIon says that there IS no such lImIt on the Board s JunsdIctIOn. In the alternatIve, the employer argues that the gnevance IS marbItrable because It was not filed wIthm the tIme lImIt specIfied m ArtIcle 27 9 3(a) of the green collectIve agreement The UnIon says that tIme never began to run agamst the gnevor under that artIcle be cause he never receIVed a wntten decIsIOn from the CompensatIOn Programs Branch. In the alternatIve If tIme dId run under ArtIcle 279 3(a) the UnIon asks that I extend the tIme for filmg m exerCIse of my JunsdIctIOn under subsectIOn 48(16) of the Labour Relatwns Act, 1995 S 0 1995 c 1 Sch. A ("the LRA) whIch applIes to these proceedmgs by vIrtue of subsectIOn 7(3) of the Crown Employees Collectwe BargmrwLg Act, 1993, S 0 1993 c 38 as amended [9] WIth respect to the effect of ArtIcle 80 1 of the red collectIve agreement, counsel agreed that for purposes of mterpretmg the language of and mterplay be tween the relevant prOVISIOns m force before and after March 31 1996 one could proceed as though the green collectIve agreement had been m force untIl March 30 1996 and the red collectIve agreement had been m force from and after March 31 1996 The employer dId not assert that ArtIcles 22 9 1 and 2292 of the red col lectIve agreement applIed to any complamt about a denIal of benefits alleged to have occurred on or after January 1 1994 and before March 31 1996 In ItS sub- mISSIOns, the employer ImplIcItly accepted that If I had JunsdIctIOn to treat the gnevance as assertmg a breach of the terms of the green collectIve agreement, despIte ItS havmg been filed after a new collectIve agreement had come mto ef fect, then the questIOn of the arbItrabIlIty of the gnevance would be determmed by reference only to the prOVISIOns of the green collectIve agreement 7 Analysis Jurisdiction with respect to alleged breach of "prior" collective agreement [10] Employer counsel cIted Re SauLt John, Sh/,pbwldu/,g Ltd. and Samt John Manne Craft Unwn (1990) 12 L.A.C (4th) 322 (Kuttner) m support of the propo sItIOn that an arbItrator or arbItratIOn board does not have JUrISdIctIOn to arbI trate a grIevance about an alleged breach of a collectIve agreement prIor to the one m effect at the tIme the grIevance was filed That award m turn cItes Re Goodyear Canada ]nc and U R. W, Loc 232 (1980) 28 L.A.C (2d) 196 (M.G Pi cher) for the proposItIOn that a board of arbItratIOn can have no JUrISdIctIOn be yond the collectIve agreement under whIch It IS constItuted [11] The grIevance m Goodyear related to the alleged breach of the terms of three succeSSIve collectIve agreements It had been filed durmg the term of the last of those three agreements In the first paragraph of the award, ArbItrator PI cher defined the prelImmary addressed m It as follows the Issue IS whether thIS board IS properly constItuted to hear the grIev ance m relatIOn to the expIred collectIve agreements. That IS a questIOn sepa rate and chstmct from whether the grIevances should, havmg regard to delay the conduct of the partIes or any other factor be found to be arbItrable by a board of arbItratIOn properly constItuted to hear them. He refined that defimtIOn at page 199 of the report of the award The prelImmary questIOn m thIS case raIses three chstmct Issues. (1) Whether the grIevance filed m thIS case under the two expIred collectIve agreements can be conslClered by any board of arbItratIOn. (2) If It can be heard by a board of arbItratIOn whether It can be heard by thIS board, constItuted as It IS under the 1977 collectIve agreement. (3) If the grIevances under the two expIred agreements are properly before thIS board, whether they are arbItrable applymg establIshed arbItral prmcI pIes and collectIve bargammg polIcy conslCleratIons havmg regard to the lapse of tIme mcludmg two succeSSIve renewals of the agreement, from the date at whIch theIr cause first arose [12] On the first of those three Issues, ArbItrator PIcher concluded that a grIevance allegmg the breach of an expIred collectIve agreement could be consId ered by a board of arbItratIOn, notwIthstandmg that It was filed after the term of the agreement and any statutory extensIOn of ItS terms had expIred, so long as 8 the board was properly constItuted under or m respect of that expIred collectIve agreement by the partIes or by the MmIster of Labour under what IS now sectIOn 48 of the LRA He adopted wIth approval the followmg observatIOns of the On tarIO Labour RelatIOns Board ("the OLRB") m Genstar Chem/,cal Ltd v lnt'l Chem/,cal Workers Unwn, Local 721 [1978] OLRB Rep 835 8. A fundamental polIcy of The Labour RelatIOns Act IS that all grIevances arIsmg durmg the term of a collectIve agreement are to be settled wIthout stoppage of work. To ensure the achIevement of that polIcy the LegIslature has mandated m sectIOn 37(1) a procedure for the peaceful resolutIon of all such chfferences. SectIOn 37(1) reqUIres that: Every collectIve agreement shall provIde for the final and bmdmg settle- ment by arbItratIOn, wIthout stoppage of work. of all chfferences between the partIes arIsmg from the mterpretatIOn, applIcatIOn, admmIstratIOn or alleged vIOlatIOn of the agreement mcludmg any questIOn as to whether a matter IS arbItrable. Here, the Board IS dealmg WIth a chfference between the partIes arIsmg from a collectIve agreement even though the grIevance was filed followmg the agreement s termmatIOn. That bemg the case the statute reqUIres that the arbItratIOn procedure provIded for m the collectIve agreement be avaIlable to the partIes. The Board does not consIder that the legIslatIve polIcy set out m sectIOn 37 was mtended to be lImIted by reference to the tIme at whIch the grIevance was filed. WhIle the tIme of fihng IS a factor whIch mav be tahen Into account bv a board of arbltratwn In deCldl1l.g whether to arbItrate a grin ance whIch IS not filed wIthIn the tIme hmlts specIfied In the grievance proce dure It cannot preclude the estabhshment of an arbltratwn board to deal wIth a grievance aT/SIng dUring the term of a collectwe agreement. (My emphasIs) It IS apparent from what precedes It m thIS passage that when the OLRB spoke of a "grIevance arIsmg durmg the term of a collectIve agreement m the last sentence It was referrmg to the occurrence of the events gIvmg rIse to the grIevance, not the subsequent assertIOn of a complamt about that breach by the filmg of a WrItten grIevance [13] Havmg found that a grIevance allegmg breach of an expIred collectIve agreement could be arbItrable notwIthstandmg that the grIevance procedure was mItIated after that collectIve agreement had expIred ArbItrator PIcher also found that m order to have JUrISdIctIOn over the grIevance an arbItrator or arbI tratIon board would have to have been constItuted under the expIred collectIve agreement by the partIes or the MmIster of Labour He observed (at pp 202 3) that a board of arbItratIOn can have no JUrISChctIOn beyond the collectIve agreement under whIch It IS constItuted. The conclusIOn [SIC] would chspose of 9 the first two Issues raIsed before us. Any grIevances that arose under the 1971 collectIve agreement and the 1974 collectIve agreement may find theIr way before a board of arbItratIOn eIther by the agreement of the partIes or by an order of the MmIster In VIew of the company s refusal to consent to the con stItutIOn of thIS board to hear these grIevances, however we must conclude that they are not properly before thIS board, constItuted as It IS only under the 1977 collectIve agreement [14] A number of other awards are to the same effect see Re Re/,mer Express Lmes Ltd. and C.B.R.T & G W (1991) 23 L.A.C (4th) 343 (Chapman) and the awards referred to therem. The awards generally acknowledge that (subJect to Issues relatmg to contractual tIme lImIts on the assertIOn of grIevances) a grIev ance concernIng the alleged breach of a collectIve agreement can be referred to arbItratIOn even though the grIevance was not asserted untIl after the collectIve agreement expIred The underlymg lOgIC of that posItIOn IS remforced by the de CIS IOn of the Supreme Court of Canada m Re Dayco (Canada) Ltd and Natwnal Automotwe, Aerospace & Agncultural Implement Workers Unwn of Canada (1993) 102 D L.R. (4th) 609 To the extent that the award m Re Smnt John Slup bu/,ldmg Ltd, supra, suggests otherWIse I respectfully dIsagree wIth It [15] The JUrISdIctIOn of the GrIevance Settlement Board to entertam grIevances under expIred collectIve agreements was addressed m Re Ontano Pubhc Sermce Employees Unwn and The Queen In R/,ght of Ontarw et al (1985) 51 0 R. (2d) 474 (Ont DIV Ct) where the court quashed a panel s decIsIOn that It had no such JU rISdIctIOn. The court noted that m Goodyear the arbItratIOn board had deter mmed It had no JUrISdIctIOn not because the grIevance under expIred collectIve agreements was marbItrable but because the board had not been constItuted un der those agreements It observed at page 479 that The Board IS a creature of statute and has been the body empowered to CE- termme chsputes under all collectIve agreements smce 1974 to whIch the grIevors m thIS case have been subJect. ThIs IS a chfferent sItuatIOn from Goodvear, where the board under a 1977 agreement declmed JUrISchctIOn to arbItrate chsputes under two earlIer agreements. The board m Goodvear ap- peared to recogmze that the earlIer chsputes mIght be arbItrable by boards constItuted under prevIOUS agreements. In the case at bar the Board IS the only body constItuted to hear chsputes under earlIer agreements and wIth re- spect, If It had followed the reasonmg m Goodvear, It would have assumed JU rIschctIon In thIS case. WhIle the statutory framework wIthm whIch thIS board functIOns has changed smce that was wrItten, the fact remams that the GrIevance Settlement Board was 10 and IS the body constItuted to hear dIsputes under any collectIve agreements be tween the Crown and trade UnIons representmg crown employees [16] The OntarIo Labour RelatIOns Board has a statutory JUrISdIctIOn to arbI trate grIevances m the constructIOn mdustry on an expedIted basIs It has lIke WIse concluded that (subJect to Issues of tImelIness) It has JUrISdIctIOn to enter tam grIevances under expIred collectIve agreements, and has found the analysIs m Goodyear mapplIcable to ItS proceedmgs Smclmr Weldmg L/'maed, [1981] OLRB Rep March 343 M/,sco Insulatwns L/'maed, [1982] OLRB Rep Sept 1343 Ontano Hydro [1987] OLRB Rep AprIl 574 [17] It IS dIfficult to dIscern from the Goodyear award and the awards whIch have followed It exactly how It came about that the partIes there had "constI tuted boards under one but not all of the collectIve agreements that the grIev ances put before them alleged had been vIOlated It seems to me that when par tIes agree to refer to an arbItrator or board a grIevance that alleges breaches of two or more succeSSIve agreements then, unless they also expressly agree to lImIt the JUrISdIctIOn of that arbItrator or board to Issues arIsmg under Just one (or fewer than all) of those agreements, the partIes thereby "constItute the board or arbItrator under each and every of the collectIve agreements to whIch that grIev ance pertams There IS no such agreed lImItatIOn here [18] Here the partIes have agreed that the grIevance filed m September 1996 encompasses the complamt that was submItted to JIBRC m June 1995 There IS no doubt, therefore that the grIevance alleges breach of the terms of the collec tIve agreement m effect prIor to March 31 1996 SubJect to the remammg Issue of tImelmess, then, I am satIsfied that the grIevance IS properly before thIS Board at least m so far as It encompasses the complamt first submItted to JIBRC m June 1995 m accordance wIth ArtIcle 27 9 2 of the collectIve agreement then m effect [19] In so far as the grIevance concerns denIals of benefits after June 1995 and before March 31 1996 It IS not apparent whether those denIals had been the subJect of specIfic dIscussIOn at JIBRC by the tIme the grIevance was filed In deed, It IS not clear at thIS stage whether there was any dIstmct denIal m Issue beyond the one that occurred m June 1995 or whether the grIevance could be properly characterIzed sImply as a contmumg denIal that began m 1995 Counsel 11 dId not specIfically address the questIOn whether and to what extent the arbItra tIon of a grIevance properly processed through ArtIcle 279 could be concerned wIth remedymg denIals of benefits that occur after the complamt IS made to JIBRC I leave any Issues of that sort to a subsequent stage and focus now on whether the grIevance IS tImely or wIll be so treated m the exerCIse of my dIscre tIon, m so far as It encompasses the complamt referred to JIBRC m June 1995 Timeliness [20] ArtIcle 27 9 2 reqUIred that the employer's CompensatIOn Program Branch gIVe the grIevor a WrItten decIsIOn on hIS complamt wIthm 60 days after It was first dIscussed by the JIBRC In the event It dId not do so however as IS the case here ArtIcle 27 9 3 expressly allowed the grIevor to pursue hIS complamt by filmg a grIevance wIthm 7 days of the date by whIch the CompensatIOn Program Branch was reqUIred to gIve ItS decIsIOn. ArtIcle 27 13 of the green collectIve agreement provIded that 2713 ~There a grIevance IS not processed wIthm the tIme allowed or has not been processed by the employee or the Umon wIthm the tIme pre- sCrIbed It shall be deemed to have been wIthdrawn. Clearly the grIevance before me was not filed wIthm the tIme allowed by ArtIcle 2793 ArtIcle 27 15 provIdes that the tIme lImIts m ArtIcle 27 may be extended by agreement of the partIes m wrItmg There IS no allegatIOn that there was any such WrItten agreement StrIctly speakmg, therefore the grIevance IS untImely m so far as It raIses the complamt put before JIBRC m June 1995 unless I extend the tIme lImIt m the exerCIse of my statutory dIscretIOn under subsectIOn 48(16) of the LRA. [21] SubsectIOn 48(16) of the LRA provIdes that (16) Except where a collectIve agreement states that thIS subsectIOn does not apply an arbItrator or arbItratIOn board may extend the tIme for the tak mg of any step m the grIevance procedure under a collectIve agreement, CE- spIte the expIratIOn of the tIme, where the arbItrator or arbItratIOn board IS satIsfied that there are reasonable grounds for the extensIOn and that the op- posIte party will not be substantIally preJuchced by the extenSIOn. The employer concedes that It would not be preJudIced by an extensIOn of the deadlme m ArtIcle 2793 from August 1995 to the date m September 1996 when 12 the grIevance before me was filed The absence of substantIal preJudIce IS a neces sary but not sufficIent condItIon for an extenSIOn. There must also be "reasonable grounds for the extenSIOn. [22] In assessmg whether there are reasonable grounds, the arbItrator must consIder all the CIrcumstances The reasonableness of the defaultmg party s ex planatIOn of ItS delay IS an Important consIderatIOn, but not the only consIdera tIon. Even If there IS no reasonable explanatIOn, other consIderatIOns may lead an arbItrator to the conclusIOn that there are reasonable grounds for extenSIOn. Re Becker Milk Company Ltd. and Teamsters Unwn, Local 647 (1978) 19 L.A.C (2d) 217 (Burkett) OLBEU (Gamble) and LCBO 1635/96 (Gray) [23] Here the only explanatIOn offered m eVIdence IS the assertIOn m paragraph 8 of the Agreed Statement of Fact that after sIgnmg the grIevance form m June 1995 'Mr HarJu understood that the matter had been processed as a grIevance and as a complamt to JIBRC In other words, he had put the matter m the hands of hIS UnIon. That only shIfts the spotlIght to the UnIon, from whom there IS no testImonIal explanatIOn of ItS faIlure to move the dIspute on through the grIev ance process on the tImetable contemplated by ArtIcle 27 9 of the agreement to whIch It was a sIgnatory [24] It has to be noted though, that the employer lIkewIse faIled to proceed on the tImetable contemplated by ArtIcle 27 9 It faIled to delIver a decIsIOn about the complamt, eIther wIthm the tIme lImIt specIfied m ArtIcle 27 9 2 or at all Employer counsel trIed to argue that the settlement offer made m August 1995 was a decIsIOn of the sort contemplated by that artIcle Apart from bemg unper suaSIve that submIssIOn flew m the face of the partIes clear agreement m the last paragraph of the Agreed Statement of Fact that "No decIsIOn was gIVen to the employee from the CompensatIOn Programs Branch pursuant to artIcle 279 2(c) of the green collectIve agreement [25] It does not seem unlIkely that the UnIon or the grIevor or both would have moved the dIspute to the next stage of the msured benefits grIevance procedure promptly upon receIVmg an employer decIsIOn under ArtIcle 279 2(c) sIgnallmg that a satIsfactory resolutIOn would not be achIeved at the JIBRC stage Accord mgly the faIlure of the grIevor and UnIon to move the matter beyond the JIBRC 13 stage on the tImetable contemplated by ArtIcle 27 9 cannot be consIdered m Isola tIon from the employer's faIlure to do so [26] The explanatIOn of the employer's faIlure to gIVe a decIsIOn as reqUIred by artIcle 27 9 2(c) IS that It dId so "because the matter was stIll under consIderatIOn by OPSEU It also appears to be agreed that the employer consented to a serIes of requests by the UnIon S representatIves at JIBRC to defer dIscussIOn of the grIevor's complamt to subsequent meetmgs of JIBRC None of that excused the employer from the reqUIrement of artIcle 27 9 2(c) that It delIver a decIsIOn wIthm 60 days however unless the partIes agreements to defer dIscussIOn amounted to a WaIver of, or agreement to extend the 60 day tIme lImIt Whether or not the employer's conduct amounted as a matter of law to a WaIver of the tIme lImIts or an agreement to extend It or estopped It from complammg about the delay It seems to me to be a sIgnIficant consIderatIOn m determmmg whether to extend the tIme lImIt that the employer now complams was breached [27] The grIevor's complamt IS a serIOUS one concernIng matters of genume lID portance to hIm and hIS wIfe ThIs IS not a case m whIch the employer dId not have tImely notIce of the complamt when It arose There IS no challenge to the tImelmess of the first steps taken m respect of that complamt under the msured benefits grIevance procedure m force at the tIme The defect on whIch the em ployer now relIes IS sImply that the grIevor's complamt dId not move the com plamt from the JIBRC stage of the procedure to the next stage on the tImetable contemplated by the collectIve agreement The employer dId not abIde by that tImetable eIther so the Importance of faIthfulness to agreed upon tImetables cannot be a strong consIderatIOn m assessmg whether there are reasonable grounds for an extensIOn m thIS case [28] The CIrcumstances seem to me to provIde reasonable grounds for an exten SIOn of the tIme for movmg the grIevor's complamt from the JIBRC stage to the next stage of the msured benefits process contemplated by the terms of the col lectIve agreement m effect when the complamt reached the JIBRC stage Accord mgly the grIevance IS tImely an arbItrable at least m so far as It raIses the com plamt orIgmally put before the JIBRC m June 1995 [29] ThIs grIevance wIll therefore be scheduled for hearmg on ItS merIts 14 Dated at Toronto thIS 8th day of December 1999 &~. -- ' '':' ;\l; .. ., ~. J '- . . .r' _. _.,J. >:<;t~ Owen V Gray VIce ChaIr 15