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HomeMy WebLinkAbout2000-1495.Union Grievance.02-01-24 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~~~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1495/00 1569/00 1609/00 1614/00 UNION#0IU008 01U017 0IU013 01U014 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befo re THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees UnIon (UnIon Gnevance) Gnevor - and - The Crown In RIght of Ontano (MInIstry of Health and Long-Tenn Care) Employer BEFORE RIchard Brown Vice-Chairperson FOR THE GRIEVOR DavId Wnght Counsel Ryder Wnght Blair & Doyle FOR THE EMPLOYER John SmIth SenIor Counsel Legal ServIces Branch Management Board Secretariat HEARING January 7, 2002 DECISION These four UnIon gnevances concernIng penSIOns anse out of the recent transfer of psyclllatnc facIlItIes from the provIncial government to hospItals In the broader publIc sector ThIS second Interlln decIsIOn deals exclusIvely wIth the employer's prelllnInary obJectIOn that the gnevances are untImely As the UnIon concedes they were not filed wItllln the tllne lImIts specIfied In the collectIve agreement, the only Issue IS whether I should grant an extensIOn of tllne under s 48(16) of the Labour RelatlOns Act, 1995 The factual backdrop for the gnevances IS described In the first Interlln decIsIOn, dated December 20,2001, MinIstry of Health and OPSEU, GSB FIle 1495/00 Psyclllatnc facIlItIes fonnerly operated by the MInIStry of Health In London/St Thomas, HamIlton, KIngston and BrockvIlle have been transferred to St Joseph's Health Centre In London, St Joseph's Health Care HamIlton, ProvIdence ContInuIng Care Centre In KIngston and Royal Ottawa Health Care Group respectIvely When the psyclllatnc InstItutIOns were operated by the MInIstry, employees there were represented by OPSEU and were members of the OPSEU PenSIOn Trust (OPT) SInce becomIng employees of the reCeIVIng hospItals, these people have been covered by the HospItals of OntarIO PenSIOn Plan (HOOPP) (page 1) The UnIon obJects to fonner crown employees beIng enrolled In HOOPP pendIng a detennInatIOn of whIch bargaInIng agent wIll represent them and, for those who contInue to be represented by OPSEU, pendIng the negotIatIOn of a first collectIve agreement I A detailed account of the facts relevant to the Issue of tllnelIness IS found In the agreed statement attached as AppendIx "A" It begIns wIth the transfer agreements negotIated between the Crown and the reCeIVIng hospItals The 2 first such agreement, dealIng wIth the BrockvIlle facIlItIes, was executed In January of 2000 and sent to the UnIon on or about January 26 The last agreement, relatIng to the London and St Thomas facIlItIes, was concluded on March 10,2000 and sent to the UnIon wItllln the folloWIng week. Each transfer agreement contaInS the folloWIng prOVISIOn about penSIOns SubJect to declslOn by the HospItal to become a partIcIpating Employer In the OPSEU PenslOn Trust Plan, the Crown IS wIllIng to provIde for the contInued MembershIp [In] the OPSEU PenSIOn Trust of former PublIc Servants who were employed by the PHs [psychIatnc hospItals] Immediately pnor to the Changeover Date and whose eXIt from the Plan MembershIp and from the Ontano PublIc ServIce occurred as a result of the transfer of the PHs to the HospItal The HospItal must notIfy the Crown of the electIOn pnor to the effectIve date of a new CollectIve Agreement covenng former PublIc Servant employees of the PHs ThIS ArtIcle applIes only If OPSEU becomes the BargaInIng Agent for the former PublIc Servant employees of the PHs folloWIng the Changeover Date ThIS ArtIcle does not apply when a former PublIc Servant's posItIOn IS subsequently transferred to another employer that IS not the Crown (emphasIs added) ThIS provIsIOn allows the reCeIVIng hospItal to decIde whether to leave employees In OPT or to enrol them In HOOPP By letter dated September 7,2000, the Ontano HospItal ASSOCiatIOn Informed Leah Casselman, the PresIdent of OPSEU, that HOOPP would be the penSIOn plan for transferred employees at all of the reCeIVIng hospItals On September 13, Ms Casselman wrote to Michele Nobel, Deputy MinIster of Management Board Secretanat, expreSSIng the unIon's OpposItIOn to HOOPP Ms Nobel's reply, dated September 21, IndIcated the chOIce of penSIOn plan was for the hospItals to make In a second letter to Ms Noble, dated October 11, Ms Casselman reIterated the unIon's posItIOn that transferred employees should remaIn members of OPT 3 On October 15,2000, the day before the BrockvIlle transfer occurred, OPSEU InItIated court proceedIngs, relatIng to penSIOns, agaInst the Crown and the Royal Ottawa Health Care Group When the unIon's applIcatIOn for Interlln relIef came on for heanng before Madame JustIce KItely on November 20, the employer offered to Waive any tllnelIness obJectIOn If the UnIon wIthdrew ItS applIcatIOn and referred the matter to arbItratIOn, but tlllS offer was reJected. Intenm relIef was granted In a decIsIOn dated November 28 ThIS rulIng was appealed to the DIvIsIOnal Court In oral reasons delIvered on January 5, 2001, the court held the UnIon was not entItled to Interlln relIef because It had not demonstrated Irreparable hann As to OPSEU's applIcatIOn for pennanent relIef, the court concluded OPT was Incorporated Into the unIon's collectIve agreement wIth the Crown and that all penSIOn Issues ansIng from the transfer of the BrockvIlle facIlItIes fell wItllln the exclusIve JunsdIctIOn of the Gnevance Settlement Board. NeIther OPSEU nor the crown had argued that the collectIve agreement Incorporated OPT Between January 18 and February 9, 2001, OPSEU filed the four gnevances at hand, one for each InstItutIOn, wIth London and St Thomas beIng treated as an Integrated operatIOn The gnevance relatIng to BrockvIlle was filed after the facIlItIes there had been transferred to the reCeIVIng hospItal and after the transferred employees had been enrolled In HOOPP The same IS true of the HamIlton gnevance The other two gnevances were filed shortly before the transfer of facIlItIes and the contemporaneous enrolment of employees In HOOP 4 II To calculate the length of the umon's delay In gnevIng, I must first detennIne whIch tllne lImIt applIes to the each of the contractual vIOlatIOns alleged to have occurred. The general thrust of OPSEU' s argument IS that the Crown contravened the collectIve agreement by not makIng sufficIent efforts to persuade the reCeIVIng hospItals to leave transferred employees In OPT The umon advances three alternatIve grounds for tlllS argument the first based on AppendIx 11, the second based on artIcle 2 1 of AppendIx 18, and the tlllrd based upon the cOmbInatIOn of AppendIx 9 and artIcle 6 0 of AppendIx 18 Insofar as the gnevances are based upon AppendIx 11 or artIcle 2 1 of AppendIx 18, counsel for the prOVInce concedes the tllne lImIt IS the one generally applIcable to the filIng of polIcy gnevances as set out In artIcle 22 13 1 Where any dIfference between the Employer and the Umon anses from the InterpretatIOn, applIcatIOn, admInIstratIOn or alleged contraventIOn of the Agreement, the Umon shall be entItled to file a gnevance at the second stage of the gnevance procedure provIded It does so wItllln tlllrty days folloWIng the occurrence or ongInatIOn of the CIrcumstances gIVIng nse to the gnevance In my VIew, tlllS proVIsIOn also applIes Insofar as the umon alleges a contraventIOn of AppendIx 9 The umon contends the same tllne lImIt applIes to the gnevances Insofar as they are based on artIcle 6 0 of AppendIx 18 AccordIng to the employer, the tllne lImIt applIcable to artIcle 6 0 IS found In artIcle 8 3 of AppendIx 18 When the employer sIgns a transfer agreement wIth a hospItal, mumcIpalIty or other employer In respect of transfers under Schedule 5 B, the employer agrees that OPSEU wIll be provIded wIth a copy of the transfer agreement that the employer has sIgned wIth the mUnIcIpalIty, hospItal or other reCeIVIng employer If OPSEU belIeves that the transfer agreement IS not In complIance wIth ArtIcle 6 0, OPSEU may refer the matter to mediatIOn/arbItratIOn wItllln a seven (7) calendar day tllne penod and the matter must be resolved wItllln that tllne penod. ThIS tllne lImIt IS much more stnngent than artIcle 22 13 1 ArtIcle 8 3 reqUIres a gnevance to be resolved, not Just filed, wItllln seven days of the unIon's receIpt of a transfer agreement ContendIng artIcle 8 3 does not apply to the facts at hand, counsel for the UnIon draws a dIstInctIOn between two types of complaInts those relatIng to the contents of a transfer agreement Itself, and those relatIng the manner In whIch such an agreement IS Implemented. AccordIng to tlllS lIne of argument, the tllne lImIt In artIcle 8 3 IS not applIcable to matters of llnplementatIOn IncludIng the Instant dIspute Does artIcle 8 3 of AppendIx 18 apply to the aspect of these gnevances grounded upon artIcle 6 0 of the same appendIx? ArtIcle 14 of the transfer agreements, as provIded to the UnIon In the early months of 2000, allowed the reCeIVIng hospItals to choose between HOOPP and OPT Not untIl September of 2000 dId OPSEU learn the hospItals had chosen HOOPP Yet the root of the unIon's present complaInt agaInst the Crown, under artIcle 6 0, resIdes not In the chOIce made by the hospItals but In the transfer agreements whIch left tlllS optIOn open to them If the unIon's InterpretatIOn of artIcle 6 0 prevails, the prOVInce would be reqUIred to endeavour to negotIate wIth the hospItals to establIsh a new penSIOn arrangement whIch would supersede artIcle 14 of the transfer agreements In short, the essence of the unIon's argument IS that the agreements themselves contravene artIcle 6 6 0 The purpose of the stnct tllne lImIt In artIcle 8 3 IS to ensure the expedItIous resolutIOn of dIsputes, such as those at hand, about whether a transfer agreement does comply wIth artIcle 6 0 ThIS analysIs leads me to conclude artIcle 8 3 applIes to these gnevances Insofar as are based on artIcle 6 III The next step In calculatIng the length of the delay In filIng these gnevances IS to detennIne when tllne began to run for the purpose of applYIng the appropnate tllne lImIt Counsel for the prOVInce first argued tllne runs from the unIon's receIpt of the transfer agreements In the early months of 2000 In the alternatIve, he submItted tllne runs from September 7, 2000 when the UnIon receIved a letter from the Ontano HospItal ASSOCiatIOn statIng the hospItals had chosen HOOPP AccordIng to counsel for the UnIon, tllne runs from the unIon's receIpt ofMs Noble's letter, dated September 21 I begIn my analysIs OftlllS Issue by consIdenng artIcle 22 13 1 It states a gnevance IS to be filed wItllln tlllrty days of "the occurrence or ongInatIOn of the CIrcumstances gIVIng nse to the gnevance " What are those CIrcumstances In tlllS case? Are they found In the unIon's receIpt of the transfer agreements, whIch allowed the reCeIVIng hospItals a chOIce of penSIOn plan, or do they lIe In notIficatIOn to the UnIon of the plan chosen? The wordIng of artIcle 22 13 1 does not provIde a clear-cut answer to tlllS questIOn When a contractual tllne lImIt IS ambIguous as to when the clock starts to tIck, an arbItrator may be called upon to resolve tlllS ambIgUIty The 7 arbItral Junsprudence on tlllS subJect IS summanzed In the folloWIng passage from Brown and Beatty, Canadwn Labour ArbTtratlOn Many collectIve agreements fix tllne-lllnIts wItllln whIch a gnevance IS to be filed Such prOVISIOns may raise questIOns as to when the gnevance first arose, although It has been held that a grlevor need not antIcIpate a breach of the collectIve agreement and can wmt untTl the breach crystallzzes (2 3128, emphasIs added) The authors of Brown and Beatty cIte two cases on pOInt Standard Bread Co and MTlk and Bread Drivers (1963), 13 L.A.C 327 (Thomas), and Canadwn Broadcasting Corp and Canadwn UnlOn of PublTc Employees (1985),21 L.A.C (3d) 389 (M. PIcher) The collectIve agreement In Standard Bread stated a gnevance must be launched wItllln five days after "the event gIVIng nse to the gnevance" page 327) The gnevor was told a certaIn amount would be deducted from IllS final pay cheque When the cheque was Issued sometIme later, the deductIOn was made as forecast In a unanImous award, the board of arbItratIOn ruled that the tllne for filIng a gnevance about the deductIOn dId not begIn to run untIl the Issuance of the cheque In other words, tllne runs from when an employee actually suffers a loss, not from when the employer announces ItS IntentIOn to cause such a loss The same conclusIOn was reached, In an analogous sItuatIOn, In a case not cIted by Brown and Beatty St Joseph's HospItal Guelph and OntarlO Nurses' ASsocwtlOn (1984), 15 L.A.C (3d) 376 (Brent) In Canadwn Broadcasting Corp, the collectIve agreement reqUIred a gnevance to be filed wItllln tlllrty days of "the employee becomIng aware of the IncIdent" (page 392) The employer told the gnevor her probatIOnary penod was beIng extended and she was later dIsmIssed dunng the extensIOn 8 ArbItrator PIcher concluded the tllne for obJectIng to the extensIOn ran from when the gnevor was tennInated as a probatIOnary employee, not from when she learned management was extendIng the penod dunng whIch such a tennInatIOn was possible The ratIOnale for tlllS conclusIOn was SUCCInctly stated. It IS fair to assume that the partIes dId not Intend to burden the gnevance procedure wIth dIsputes and claims that are purely theoretIcal and wIthout practIcal consequence (page 393) For tlllS reason, ArbItrator PIcher held tllne runs from when a loss IS actually suffered, not from when It becomes a possibIlIty I reached the same conclusIOn, In an analogous sItuatIOn, In another case not cIted by Brown and Beatty Sudbury DIstrict Health Umt and OntarlO Nurses AssocwtlOn, unreported decIsIOn, dated January 11, 1985 The general prIncIple emergIng from these cases IS that the tllne for filIng a gnevance runs from the occurrence of some real detnment to an employee, not from the date the employer announces ItS IntentIOn to act In a manner dIsadvantageous to an employee, and not from the date such actIOn becomes a possIbIlIty ApplYIng tlllS prIncIple to the Instant case, I conclude tllne began to run under artIcle 22 13 1, not In the WInter of2000 when the hospItals were gIven a chOIce of penSIOn plan, but when the UnIon receIved the September 7th letter saYIng the hospItals had chosen HOOPP UnlIke the ambIguous wordIng of artIcle 22 13 1, the clear language of artIcle 8 3 of AppendIx 18 leaves no doubt as to when tllne begIns to run The seven days for resolvIng a gnevance under artIcle 8 3 runs from the date a transfer agreement IS provIded to the UnIon 9 IV SectIOn 48( 16) of the Labour RelatlOns Act pennIts a tllne lImIt to be extended at the request of one party "where the arbItrator or arbItratIOn board IS satIsfied that there are reasonable grounds for the extensIOn and that the OpposIte party wIll not be substantIally preJudIced by the extensIOn" Counsel for the employer relIes upon the folloWIng cases dealIng wIth the extensIOn of tllne lImIts Greater Nwgara General HospItal and OntarlO Nurses ASsocwtlOn (1981), 1 L.A.C (3d) 1 (Sclllff), KTtchener Waterloo HospItal and London and DIstrict ServIce Workers' UnlOn (1994),44 L.A.C (4th) 293 (H.D Brown), OLBEU and LIquor Control Board of OntarlO, GSB FIle 2216/97, dated June 12,1998 (Knopf), OPSEU and MinIstry ofTransportatlOn, GSB FIle 2231/97, decIsIOn dated June 14, 1999 (Gray), OPSEU and OntarlO Realty CorporatlOn, GSB FIle 1811/98, decIsIOn dated February 19,2001 (HerlIch) I was referred to addItIonal cases by UnIon counsel McMaster UniversIty and ServIce Employees InternatlOnal UnlOn (1993), 31 L.A.C (4th) 257 (Brunner), Ferrantl- Packard Transformers Ltd. and United Steelworkers of America (1993),36 L.A.C (4th) 307 (Haefhng), MetropolTtan Toronto LIcensing CommlsslOn and Canadwn UnlOn ofPublTc Employees (1995), 47 L.A.C (4th) 182 (Spnngate), Consumers Glass and United Steelworkers of America (2000), 89 L.A.C (4th) 400 (Albertyn), and OPSEU and OntarlO Clean Water Agency, GSB FIle 1111/99, decIsIOn dated March 19,2001 (Johnston) In Nwgara General HospItal, Professor Sclllff cIted wIth approval the award In Becker MTlk Company and Teamsters UnlOn (1978),19 L.A.C (2d) 217 (Burkett) lIstIng three factors to be consIdered In detennInIng whether there are reasonable grounds for an extensIOn 10 1 the reason for the delay, 2 the length of the delay, and 3 the nature of the gnevance Professor Sclllff added three addItIonal factors to tlllS lIst 1 whether the gnevor was responsible for the delay, 2 whether the delay occurred In filIng the gnevance or later In the gnevance process, and 3 whether the employer could reasonably have assumed the gnevance had been abandoned. V Should I extend the tllne lImIt In artIcle 22 13 1 for filIng a gnevance allegIng a vIOlatIOn of AppendIx 9, AppendIx 11 or artIcle 2 1 of AppendIx 18? In answenng tlllS questIOn, I begIn by consIdenng whether there are reasonable grounds for an extensIOn I have already detennIned that tllne under artIcle 22 13 1 began to run when the UnIon receIved the letter of September 7th from the Ontano HospItal AssocIatIOn The tllne lapse between receIpt of tlllS letter and filIng of a gnevance vanes slIghtly from one sIte to another, rangIng from a low of approxImately four and one-half months to a lllgh of approxImately five months As the tllne lImIt In artIcle 22 13 1 IS thIrty days, the gnevances were between three and one-half and four months late Most OftlllS delay was caused by the unIon's decIsIOn to resort to court rather than arbItratIOn Almost three months passed between the InItIatIOn of JudIcial proceedIngs on October 15,2001 and the decIsIOn of the 11 DIVISIOnal Court on January 5, 2001 OPSEU InItIally succeeded In obtaInIng Intenm relIef but lost on appeal The UnIon delayed In filIng any gnevance, but the employer was promptly put on notIce that there was a dIspute about penSIOns WItllln a week of reCeIVIng the September 7th letter, Ms Casselman wrote to Ms Noble InfonnIng her of the unIon's obJectIOn to HOOPP Ms Noble replIed on September 21 Ms Casselman repeated her obJectIOn In a second letter, dated October 10 Ms Casselman's two letters and the enSUIng court proceedIngs clearly IndIcated that the UnIon was not abandonIng ItS complaInt The subJect matter of these gnevances IS pensIOns The outcome could have financIal repercussIOns for employees throughout theIr retIrement WeIglllng tlllS factor along wIth all of the others, I conclude there are reasonable grounds for grantIng an extensIOn Would an extensIOn of tllne cause substantIal preJudIce to the employer? The gnevances should have been filed In the first part of October 2000 but were not filed untIl early 2001 DId anytlllng happen between these two dates whIch would preJudIce the Crown If an extensIOn IS granted? The BrockvIlle sIte changed hands on October 16 and the HamIlton sIte on November 13 Transferred employees at each of these locatIOns were llnmedIately enrolled In HOOPP The prOVInce proceeded wIth these transfers knOWIng the matter of penSIOns was In dIspute and lItIgatIOn was pendIng The law SUIt was launched on the eve of the BrockvIlle transfer, leavIng the employer lIttle tllne to change course, but the HamIlton transfer occurred almost a month later willie a JudIcIal decIsIOn was stIll pendIng As a lawsUIt dId not result In the HamIlton transfer beIng postponed, It IS 12 unlikely a gnevance would have derailed eIther transfer I conclude the prOVInce, In carrYIng out these transfers, dId not rely to Its detnment on the absence of a gnevance AccordIngly, an extensIOn of tllne would not preJudIce the employer I hereby extend the penod for filIng these gnevances under artIcle 22 13 1 Insofar as they are based upon AppendIx 9, AppendIx 11 or artIcle 2 1 of AppendIx 18 To tlllS extent, the employer's tllnelIness obJectIOn IS dIsmIssed. V Very dIfferent consIderatIOns anse In decIdIng whether to extend the tllne lImIt In artIcle 8 3 of AppendIx 18 for filIng a gnevance allegIng a vIOlatIOn of artIcle 6 0 of that appendIx I have already detennIned the clock began to tIck under artIcle 8 3 when the UnIon receIved the transfer agreement for each sIte In the early months of 2000 The tllne lapse between the receIpt of the transfer agreement for a partIcular sIte and the filIng of a gnevance ranges from a low often months for the London/St Thomas facIlIty to a lllgh of 13 months for the HamIlton facIlIty Delays of tlllS magnItude loom partIcularly large because artIcle 8 3 reflects an understandIng between the partIes that dIsputes about whether transfer agreements comply wIth artIcle 6 0 are to be addressed wItllln an extremely short tllne-frame ArtIcle 8 3 reqUIres not only that a gnevance be filed wItllln seven days, but also that It be resolved wItllln those same seven days 13 Between the unIon's receIpt of the transfer agreements, dunng the first three months of 2000, and mId-September of that year, the UnIon raised no complaInt about these agreements allowIng the hospItals to choose between HOOPP and OPT The agreed statement of facts contaInS no explanatIOn for the UnIon's InactIon dunng tlllS penod Based upon the length of the delay and the absence of any explanatIOn for a substantial part of It, I conclude there are not reasonable grounds for an extensIOn of tune under artIcle 8 3 of AppendIx 18, despIte the Importance of pensIOns to retIred employees The gnevances are dIsmIssed as untImely Insofar as they allege a vIOlatIOn of artIcle 6 0 of AppendIx 18 To thIS extent, the employer's tunelIness obJectIOn IS sustamed. Dated at Toronto, tlllS 24th day of January, 2002 RIchard M. Brown, VIce-Chairperson 14 Appendix A STATEMENT OF FACTS 1) On or about January 26 2000 Malcolm Smeaton, the Employer representatIve wrote to Ms Leah Casselman, OPSEU PresIdent, adVISIng her that a Reasonable Efforts Agreement wIth Royal Ottawa Health Care Group ("Royal Ottawa") for all employees of the BrockvIlle PsychIatnc HospItal ("BrockvIlle") has been concluded. A copy of the Agreement was provIded to OPSEU at that tIme ArtIcle 14 of the Agreement dealt specIfically WIth pensIOns 2) Shortly after receIpt of thIS letter a umon gnevance regardIng the transfer of governance of BrockvIlle was filed by OPSEU on January 28 2000 No Issue regardIng the transfer of employee penSIOns was gneved. 3) A heanng was convened on February 2, 2000 before the Crown Employees Gnevance Settlement Board ("GSB") At thIS heanng, the partIes were able to resolve all Issues between them. 4) On or about August 10 2000 Mr Smeaton agaIn wrote to Ms Casselman InformIng her of the target transfer dates of all the ProvIncIal PsychIatnc HospItals to the Broader PublIc Sector SpecIfically Mr Smeaton Informed Ms Casselman that the target date for the transfer of BPH was October 16 2000 5) On or about September 7 2000 Lon FIndleton, Vice PresIdent of the Ontano HospItals AssocIatIOn wrote to Ms Casselman adVISIng her that the ReCeIVIng HospItals have chosen HospItals of Ontano PenSIOn Plan ("HOOPP") as the penSIOn plan whIch wIll apply to the transferred employees once the transfers have occurred. 15 6) On or about September 7 2000 Ms Casselman responded to Ms Findleton's letter adVISIng her of OPSEU's obJectIOn to the decIsIOn of the ReCeIVIng HospItals, requestIng that the decIsIOn be set aSIde and askIng that the ReCeIVIng HospItals meet wIth OPSEU to dISCUSS these Issues 7) A second gnevance regardIng the transfer of BrockvIlle was filed by OPSEU on September 11 2000 DetaIls of the gnevance were provIded In letters from counsel dated September 11 and 14 2000 No Issue regardIng the transfer of employee penSIOns was gneved. On September 15 2000 the partIes reached a settlement whIch resolved all outstandIng umon gnevances anSIng out of the transfer of BrockvIlle 8) On or about September 13 2000 Ms Casselman wrote to Michele Noble, Deputy Mimster of the Management Board S ecretan at, raiSIng OPSEU's concerns about the September 7 letter from Ms Findleton to Ms Casselman. 9) On or about September 19 2000 Ms FIndleton replIed to Ms Casselman's letter of September 7 adVISIng that whIle the decIsIOn wIth respect to pensIOns "has already been made" the ReCeIVIng HospItals were prepared to meet wIth OPSEU 10) On or about September 21 2000 Ms Noble replIed to Ms Casselman's September 13 letter provIdIng the Crown's posItIOn In response 11) On or about September 29 2000 Ms Casselman responded to Ms Findleton's September 19 2000 letter reassertIng OPSEU's posItIOn and acceptIng the offer to meet wIth representatIves of the ReCeIVIng HospItals 12) On or about October 11 2000 Ms Casselman wrote to Ms Noble provIdIng confirmatIOn of OPSEU's "notIficatIOn to the Crown" that employees at the affected hospItals should remaIn members of the OPT untIl the conclusIOn of collectIve bargaInIng between the ReCeIVIng HospItals and OPSEU 16 13) On or about October 16 2000 the Crown transferred to Royal Ottawa the operatIOns of the BrockvIlle PsychIatnc HospItal 14) On or about October 16 2000 Royal Ottawa became the employer of the former publIc servants of the Mimstry of Health and Long-Term Care ("Mimstry") employed at the BrockvIlle PsychIatnc HospItal who had accepted Job offers from Royal Ottawa to contInue employment at the BrockvIlle PsychIatnc HospItal 15) As publIc servants In bargaInIng umts represented by OPSEU the employees of BrockvIlle had been members of the OPSEU PenSIOn Plan. After the transfer penSIOns of employees were transferred from the OPT to HOOPP by the Royal Ottawa. 16) On almost the eve of the transfer on or about October 16 2000 OPSEU appeared ex parte before Madame JustIce SWInton of the Supenor Court of JustIce askIng for an InJunctIve relIef to prevent Royal Ottawa and the Crown from enrollIng the employees of Royal Ottawa at the BrockvIlle PsychIatnc HospItal In the HOOPP 17) The InJunctIOn was to be temporary untIl OPSEU's applIcatIOn for a permanent order reqUITIng the employees to remaIn members of the OPSEU PenSIOn Plan could be heard by the court. The maIn applIcatIOn was ongInally scheduled to be heard on February 23rd 2001 18) Madame JustIce SWInton adJourned the matter to be heard on November 20 2000 The heanng of the matter was adJourned because It would take longer than she had tIme on the docket of cases before her that day She declIned to place condItIOns on the adJournment as requested by OPSEU As a result, Royal Ottawa enrolled the employees In HOOPP 19) The matter was heard by Madame JustIce KIteley on November 20 2000 17 20) It was the posItIOn of the Crown and Royal Ottawa that upon the transfer Royal Ottawa had a chOIce of enrollIng the employers In HOOPP the penSIOn plan for the remaInder of employees of Royal Ottawa, or maIntaInIng them In the OPSEU PenSIOn Plan. 21) Royal Ottawa had chosen to enroll the employees In HOOPP It was the posItIOn of the Crown and Royal Ottawa that the Crown had no oblIgatIOn to Impose upon Royal Ottawa contInuIng membershIp In the OPSEU PenSIOn Plan for these employees It was further the posItIOn of the Crown and Royal Ottawa that Royal Ottawa had the dIscretIOn to make a chOIce of penSIOn plans for these employees 22) OPSEU took the posItIOn In ItS maIn applIcatIOn for a permanent order and In the applIcatIOn for the InJunctIOn that the Crown and Royal Ottawa were oblIged to ensure that the employees remaIned members of the OPSEU PenSIOn Plan. OPSEU claimed that the Crown has vIOlated ItS collectIve agreement, pensIOn plan, fiducIary and trust oblIgatIOns to maIntaIn the employees In the OPSEU PenSIOn Plan. OPSEU argued that Royal Ottawa had vIOlated ItS fiducIary oblIgatIOns In respect of the employees to maIntaIn them In the OPSEU PenSIOn Plan. 18 The Order of Madame Justice Kiteley 23) By reasons dated November 28 2000 Madame JustIce KIteley granted OPSEU an InJunctIOn and a declaratIOn on a temporary basIs as requested. 24) The effect of the order was that the employees at the BrockvIlle PsychIatnc HospItal were to be members of the OPSEU PenSIOn Plan untIl OPSEU's applIcatIOn for a permanent order could be heard. The effect of the order was that Royal Ottawa could not maIntaIn the membershIp of such employees In HOOPP Appeal by the Crown 25) Royal Ottawa and the Crown ImmedIately commenced a motIOn for leave to appeal the order of Madame JustIce KIteley Royal Ottawa also commenced a motIOn for a stay of the order 26) The motIOn for leave to appeal and the stay were heard on December 4 2000 by Madame JustIce MacFarland of the DIvIsIOnal Court. Leave was granted and the order of Madame JustIce KIteley was stayed. 27) The DIvIsIOnal Court heard the appeal by the Crown and Royal Ottawa on January 3 4 and 5 2001 28) Royal Ottawa and the Crown argued that the legal test for grantIng an InJunctIOn had not been met. In partIcular OPSEU would not suffer Irreparable harm If the employees were enrolled In HOOPP untIl the OPSEU's applIcatIOn for a permanent order was granted. 29) The Crown and Royal Ottawa further argued that the Court dId not have 19 JunsdIctIOn to hear the matter and the Madame JustIce KIteley should not have heard the matter 30) The Crown and Royal Ottawa had argued that the Impact of the transfer to the Royal Ottawa IncludIng the chOIce of penSIOn plans by Royal Ottawa had been negotIated In the CollectIve Agreement between OPSEU and the Crown and was a term of the Labour AdJustment Agreements between all three partIes It was the posItIOn of the Crown and Royal Ottawa that the Court dId not have the JunsdIctIOn to hear the matter and that gnevances could have been brought under anyone of these agreements on the Issue of the penSIOn plan for the employees The Ruling of the Divisional Court 31) The DIvIsIOnal Court, In oral reasons delIvered Fnday afternoon, January 5 2001 quashed the Interlocutory InJunctIOn and dIsmIssed the applIcatIOn. The DIvIsIOnal Court found that there was no Irreparable harm on OPSEU and that Madame JustIce KIteley had erred In her findIng. On that basIs alone, the InJunctIOn and declaratIOn could not stand. 32) The DIvIsIOnal Court further found that the court had no JunsdIctIOn to hear the InJunctIOn and no JunsdIctIOn to entertaIn the applIcatIOn by OPSEU for a permanent order The InJunctIOn was quashed on these grounds and the applIcatIOn by OPSEU under whIch the InJunctIOn had been sought was also dIsmIssed. 33) The DIvIsIOnal Court found that the courts had no JunsdIctIOn In the matter because the OPSEU PenSIOn Plan was Incorporated by reference Into the CollectIve Agreement between OPSEU and the Crown and that therefore OPSEU could have used the gnevance procedure under the CollectIve Agreement to 20 gneve any claim under the collectIve agreement or the penSIOn plan. 34) In argument It was the posItIOn of OPSEU that the OPSEU PenSIOn Plan was not part of the collectIve agreement and that any Issue over a breach of ItS terms could therefore be brought to the courts 35) The Crown and Royal Ottawa argued that the Issue In dIspute was an Issue ansIng out of a collectIve agreement. 36) NeIther Royal Ottawa nor the Crown contested OPSEU's assertIOn that the penSIOn plan dId not form part of the collectIve agreement. However the Court found that benefits under the penSIOn plan were collectIvely bargaIned, that the partIes had collectIvely bargaIned Into the CollectIve Agreement the manner In whIch the penSIOn plan would and would not be amended (AppendIx 11) and had collectIvely bargaIned Into the CollectIve Agreement (AppendIx 18 Art. 2 1) the language of specIfic amendments to the penSIOn plan. On thIS baSIS, the Court found that the penSIOn plan was Incorporated Into the CollectIve Agreement. 37) OPSEU argued before the DIvIsIOnal Court that the successor employer provIsIOn contInued to Impose reqUIrements upon the Crown In respect of the transfer to Royal Ottawa. The DIvIsIOnal Court specIfically reJected that argument and ruled that provIsIOn could not apply to thIS transfer It ruled that Royal Ottawa could not be a successor employer under that provIsIOn of the penSIOn plan, SInce the successor employer provIsIOns under the Labour Relations Act ceased to apply to Royal Ottawa. 38) On or about January 26 2001 OPSEU filed a gnevance wIth respect to the transfer of employees' penSIOns at BrockvIlle 39) On or about February 21 2001 OPSEU served and filed a motIOn for leave to appeal the decIsIOn of the DIvIsIOnal Court to the Court of Appeal 21 40) On or about March 9 2001 OPSEU abandoned Its appeal to the Court of Appeal Other Hospitals 41) On or about February 8th 2000 the Crown concluded the agreement wIth St. Mary's on the Lake HospItal for the transfer of the KIngston PsychIatnc HospItal - A copy of thIS agreement was provIded to OPSEU wIthIn a week of concludIng the Agreement. The agreement contaInS the same language regardIng penSIOns as the transfer agreement between BrockvIlle and Royal Ottawa. - On or about March 5 2001 the Crown transferred the operatIOns of the KIngston PsychIatnc HospItal to St. Mary's on the Lake HospItal - On or about January 24 2001 OPSEU filed a gnevance wIth respect to the transfer of employees' penSIOns 42) On or about March 10 2000 the Crown concluded the agreement wIth St. Joseph's Health ServIces AssocIatIOn of London for the transfer of the London PsychIatnc HospItal - A copy of thIS agreement was provIded to OPSEU wIthIn a week of concludIng the Agreement. The agreement contaInS the same language regardIng penSIOns as the transfer agreement between BrockvIlle and Royal Ottawa. - On or about February 19 2001 the Crown transferred the operatIOns of the London PsychIatnc HospItal to St. Joseph's Health ServIces AssocIatIOn of London. - On or about January 18 2001 OPSEU filed a gnevance wIth respect to the transfer of employees' penSIOns 43) On or about March 10 2000 the Crown concluded the agreement wIth St. Joseph's Health ServIces AssocIatIOn of London for the transfer of the St. Thomas 22 PsychIatnc HOspItal - A copy of thIS agreement was provIded to OPSEU wIthIn a week of concludIng the Agreement. The agreement contaInS the same language regardIng penSIOns as the transfer agreement between BrockvIlle and Royal Ottawa. - On or about January 22, 2001 the Crown transferred the operatIOns of the St. Thomas PsychIatnc HospItal to St. Joseph's - On or about January 18 2001 OPSEU filed a gnevance wIth respect to the transfer of employees' penSIOns 44) On or about Jan. 5 2000 the Crown concluded the agreement wIth St. Joseph's HospItal for the transfer of the HamIlton PsychIatnc HospItal - A copy of thIS agreement was provIded to OPSEU wIthIn a week of concludIng the Agreement. The agreement contaInS the same language regardIng penSIOns as the transfer agreement between BrockvIlle and Royal Ottawa. - On or about November 13 2000 the Crown transferred the operatIOns of the HamIlton PsychIatnc HospItal to St. Joseph's Health Care Group - On or about February 9 2001 OPSEU filed a gnevance wIth respect to the transfer of employees' penSIOns 45) OPSEU dId not file any gnevances wIth respect to the transfer of employee's penSIOns pnor to Jan. 18 2001 23