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HomeMy WebLinkAbout1993-2409.Della Terza.10-01-07 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#1993-2410, 1993-2412, 1998-0731, 1993-2409, 1993-2409 UNION#1993-0530-0013, 1993-0530-0026, 1998-0530-0033, 1993-0530-0025, 1993-0530-0006 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Della Terza) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Bram Herlich FOR THE UNION David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Susan Munn and Ferina Murji Ministry of Government Services Counsel HEARING December 21, 2009. - 2 - Decision [1]In 1993, the grievor filed three similar grievances related to the employer?s alleged failure to enforce its policy with respect to smoking in the workplace. Some ten years later, he filed another three such grievances. [2]These matters were referred to this Board and on February 28, 2004, the parties entered into a memorandum of settlement in respect of them. Some of the material provisions of the parties? agreement read as follows: ?whereas the parties wish to fully and finally settle all issues between them respecting these grievances and the Grievor?s employment to date; Therefore the parties agree to the following terms and conditions as a full and final settlement of all issues between them: ? 2. The Union and the Grievor agree that the terms of this settlement fully and finally resolve any issues respecting the Grievor?s employment to the date of this settlement. 3. The Employer shall pay to the Grievor the net sum of $1,500.00 to be paid within 30 days of this settlement. 4. The Employer agrees that upon the cessation of the Grievor?s WSIB benefits, his sick leave bank will be credited with 130 days. 5. The Employer agrees that the Grievor will be able to access the 130 days in his sick leave bank upon the cessation of his WSIB benefits upon providing the Employer with a doctor?s note every two months confirming the grievor?s inability/unavailability to work and agrees that the Grievor will not be placed in the attendance review program as a result of this absence. [3]Notwithstanding the settlement entered into some six years ago, the union requested that the matter be re-listed for hearing. It claims that, as a result of certain recent developments, which are not the fault of any of the parties, the settlement has been frustrated. It therefore asks - 3 - me to declare that the settlement is no longer valid and binding, leaving the parties free to either renegotiate its terms or have the grievances in question be litigated afresh. [4]The employer disputes the union?s claim and, by way of a preliminary objection, asks that I affirm the continuing binding effect of the parties? settlement and reject the union?s request. [5]The union prepared and filed a statement of particulars. The employer, at least for the purposes of its motion, accepted these asserted facts (though not necessarily the legal conclusions asserted in the particulars) as true and provable. But even with that limited concession, the employer argues that I am without jurisdiction to entertain the union?s request because the matter is settled. Alternatively, even if the remedy sought by the union might be available in a case where a settlement is frustrated, the facts asserted and relied upon by the union do not amount to frustration and do not otherwise provide the basis for this Board to intervene in a long settled matter. [6]In February 2004 when the parties negotiated the settlement partly set out above, the grievor was off work and in receipt of WSIB benefits for reasons not related to his grievances. He had been off work since September 2003. He has not returned to work since and has recently received notification from the WSIB that his full Loss of Earnings benefit (less his secured CPP benefits) ?is now locked in until you reach age 65 unless there should be a pertinent material change?? (As a result of an appeal to a Review Tribunal under the Canada Pension Plan, the grievor was found to have been suffering from a severe and prolonged disability since going off work in September 2003 and was awarded CPP disability benefits accordingly). [7]The union asserts that the settlement provides two central benefits to the grievor. The first was a payment of $1500 (which the grievor agrees to repay in the event the union?s motion to declare the settlement of no force and effect is successful). [8]It is the second benefit, however, which the union claims was the more significant one. Once the grievor?s WSIB benefits ceased, he was to receive a credit of 130 sick days which he would be able to access much more freely than might otherwise be permitted under the terms of - 4 - the collective agreement. And while the union did not put it precisely so, it appears that this benefit might be viewed as tantamount to a six month paid (albeit at the reduced sick leave benefit rate) leave of absence. [9]The union asserts that the parties clearly contemplated that at some point the grievor would cease receiving WSIB benefits and would then have six months of paid sick leave before returning to work. They clearly contemplated that the grievor would receive this benefit of the settlement although its precise timing was uncertain. What the parties did not contemplate is that the grievor?s WSIB benefits would nevercease and that the grievor would never receive the most important benefit of the negotiated settlement. [10]In fact, subsequent to the settlement, the grievor?s condition, rather than improving, apparently deteriorated such that he will now never cease receiving WSIB benefits. This is the ?supervening event? the union points to and relies upon to assert that the obligations of the settlement now cannot be performed and the parties ought to be relieved of its application. [11]The employer views matters somewhat differently. It strongly disputes the union?s assertion that the parties explicitly contemplated that at some point the grievor would cease receiving WSIB benefits. Indeed, its presentation of the purpose of the agreement is markedly different. The benefits set out in paragraphs 4 and 5 were described as a ?fail safe? the grievor could access in the event that his WSIB benefits did cease. In other words, there was a possibility that might happen and the parties, effectively, agreed to provide the grievor with ?insurance? coverage which, in the event WSIB coverage did cease, would provide him with 6 months of paid sick leave and a possible bridge to long term disability benefits. [12]While these competing descriptions of the purpose and function of the parties? settlement may each be plausible, there is nothing in the settlement itself or in the particulars relied upon by the union which compels one characterization over the other. Indeed, all that these competing characterizations may suggest is that the parties may have had differing understandings of the purpose of their agreement. But the words of the settlement are clear and unambiguous. - 5 - [13]Further, there are really no significant legal issues which separate the parties in this case. And while the employer?s presentation of the existence of a settlement as an absolute bar to my jurisdiction is not one that the union fully embraced, it acknowledged that for well-known and well-established reasons of labour relations policy, settlements ought not to be interfered with but for the most exceptional of circumstances (authorities on the point are abundant, see for example the decisions of this Board in OPSEU (Harrison et al.) and Ministry of Solicitor General and Correctional Services (1999), GSB No. 1992-1164 (Knopf) and OPSEU (McDonald) v Ministry of the Environment (2008), GSB No. 2005-3002 (Mikus)). [14]The union asserts that where the facts are such that the doctrine of frustration can be properly invoked, it may be that one of those exceptional types of circumstances can be made out. But even accepting that to be the case, I am not persuaded that the facts of this case can give rise to an application of the doctrine. [15]The parties agreed that the following formulation of the Supreme Court of Canada (in Naylor Group Inc. v Ellis-Don Construction Ltd. [2001] 2 S.C.R. 943 at para 53) is a useful description of the term: Frustration occurs when a situation has arisen for which the parties made no provision in the contract and performance of the contract becomes ?a thing radically different from that which was undertaken by the parties? contract?. [16]We were also referred to a British Columbia arbitration award in Alcan Smelters and Chemicals Ltd. V Canadian Auto Workers, Local 2301 (1994), 46 L.A.C. (4th) 388 (Hope) which, at paragraph 40 set out the following extract from the case of Krell v. Henry, [1903] 2 K.B. 740 (C.A.) at p. 751: ?In each case one must ask oneself, first, what, having regard to all of the circumstances was the foundation of the contract? Secondly, was the performance of the contract prevented? Thirdly, was the event which prevented the performance of the contract of such a character that it cannot reasonably be said to have been in the contemplation of the parties at the date of the contract? If all these questions are answered in the affirmative ? I think both parties are discharged from further performance of the contract. - 6 - In my view, applying either of these approaches clearly demonstrates the impropriety of applying the doctrine of frustration to the facts of the case. [17]First, the competing presentations of the purpose of the settlement are testament to a lack of shared understanding, not necessarily as to its terms, but certainly as to its purpose. All that can be said with certainty on this point is that there is nothing in the terms of the settlement itself or in the facts outlined in the union?s particulars which leads irrevocably to any conclusion that the parties contemplated that the grievor would cease receiving WSIB benefits or that any such contemplation was part of the foundation of their agreement. [18]Second, it is not absolutely clear that performance of the contract has been prevented. While the employer acknowledged that it appears unlikely that the grievor?s WSIB benefits will cease before he reaches age sixty-five, there remains the possibility, however slim, that a ?material change? of the type contemplated by WSIB might still result in the cessation of benefits. Further, there really is no dispute that the grievor?s WSIB benefits will cease, at the latest, when he reaches age 65. And the employer (without entering into any elaborate analysis of the current legal status of mandatory retirement) acknowledged that the grievor might well be able to avail himself of the negotiated benefit of the settlement at that time. [19]Finally, neither can it be said that (even the indefinite) continuation of the grievor?s WSIB benefits could not reasonably be said to have been in the contemplation of the parties at the time of the settlement. Whether viewed from a more subjective perspective as adverted to earlier or from the more objective perspective posited in Krell,it simply cannot be persuasively established that the parties jointly (i.e. as distinct from one of them singly) did not, could not or ought not to have contemplated the possibility of the grievor?s WSIB benefits continuing indefinitely. [20]The employer describes a settlement (or at least one of its terms) which functions to provide a type of insurance to the grievor for income maintenance. The union and the grievor may well have had a different understanding. They may well have seen the settlement as providing a benefit which was certain to be provided at a time that was not. There may have been a plurality of ways to operationalize that understanding. But the parties nonetheless agreed - 7 - that the trigger for the provision of the benefit was the cessation of the grievor?s WSIB benefits. Nothing before me persuades me that the parties ought not to be held to the terms of their bargain. [21]The union?s motion is dismissed. The parties settlement remains intact. th Dated at Toronto this 7 day of January 2010. Bram Herlich, Vice-Chair