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HomeMy WebLinkAbout1979-0226.Skinner.83-07-06I . . . 2, , . July~ 6,, 1983 MEMORANDUM TO MEMBERS SUBJECT: Judicial Review G.S.B. 226179 P. Skinner A copy of the Divisional Court's award in the matter bf Judicial Review Fe 226179 Skinner is attached, for your i@orma$ion. /lb ._,. Attach. IN THE SUPREME COURT OF ONTARIO DIVISIONAL COURT GriffithqDuPont, Trainor, JJ. IN THE MATTER OF The Judicial Review Procedure Act, R.S.O. 1980, c. 224; i AND IN THE MATTER OF The Crown ) Employees Collective Bargaining Act, j R.S.O. 1980, c. 108; AND IN THE MATTER OF a decision of ) the Grievance Settlement Board dated ) the 20th day of November, 1981, with respect to a grievance of H.S. Skinner ; BETWEEN: ; HER MAJESTY THE QUEEN IN ! RIGHT OF ONTARIO ; Applicant ,’ - and - i ONTARIO PUBLIC SERVICE EhlPLOYEES UNION AND THE ; GRIEVANCE SETTLEMENT BOARD ; Respondents ) D. W. Brown, Q.C. for the applicant C. G. Paliare for the respondents Heard: May 2,198i. GRIFFITHS;J. (Orally):- This is an application by the employer for judicial ,review of an award of the Grievance Settlement Board dated November 20, 1981, where the Board held that the employer had breached the collective bargaining agreement. , Mr. H. S. Skinner was hired by the Ministry of Industry and Tourism in July of 1974. Mr. Skinner was a specialist in the film industry and was hired by the ministry to organize and run a new film office. The .function of his office in particular was the promotion of the Ontario Film Industry. Mr. Skinner’s classification was that of Industrial Development Officer 3. Essentially his position was that of “Film Officer”. Late in 1978 the government decided upon a major re-organization of the Industry Branch of its ministry resulting in over 100 personnel changes. As a result of these changes Mr. Skinner was transferred “laterally” to the position of Industrial Development Officer in the Small Business Development Branch of the ministry. There was no loss of pay to Mr. Skinner and his .job classification did not change. However, in his new position he was no longer involved with the film industry. After his transfer Mr. Skinner’s former work was divided up and handled by a number of employees. Two employees, illr. Villeneuve and Mr. Fisher handled about 30% of Mr. Skinner’s former duties as a film officer. Before the Board, it was conceded by the union that the employer had the right to assign Mr. Skinner to a new position. The union contended, . . -3- however, that there was left in the wake of Mr. Skinner’s transfer a “new classified position”. That new position was given over, in part at least, to Messrs. Villeneuve and Fisher. The union contended that the employer, having created a new classified position, was in breach of its duty to Mr.. Skinner, in failing to advertise this position, thus permitting Mr. Skinner, along with others, to compete for it. The Board found in favour of the union with respect to this first issue. The Board concluded, however, that it was not practical, tn view of the delay that had occurred from the time of the transfer to the time of the Board’s order to then direct that the position be advertised and Mr. Skinner be given an opportunity to compete for the post. Instead, the Board saw fit to award Mr. Skinner damages on a formula basis; the details of which I need-not review. Counsel for the applicant employer contends that the finding of the Board that a new classified position had been created by the transfer of Mr. Skinner was patently wrong. Secondly, and alternatively, counsel for the applicant contends that the Board erred in awarding damages and should have ordered that the newly classified position be advertised and that Mr. Skinner be given an opportunity to compete. This was in fact what Mr. Skinner had asked for in his grievance and it is contended the Board should not have gone beyond ‘th;C As well, it is submitted that there was no -4- evidence to support the financial loss upon which the damage award wes based. The fist finding of the Board was essentially a finding of fact. While we say respectfully that we might not have, arrived at the same decision as the Board did on the first issue, we are not satisfied that if there was an error, such error was so patent and of such a magnitude as to justify our interference. With respect to the second ground of the application, we note that the award of the. Board was made in November 1981 and that this application for review was launched in February of 1982. However, the applicant did not move to perfect the application until November 1982. It was conceded by counsel for the applicant that one of the problems facing the Board in November 1981 was the delay that had occurred and the difficulty as a result in then ordering that the newly created position be advertised. That delay has been further,exacerbated by the delay of the applicant in perfecting this application. In our view, by reason of the delay alone, this court should not, in the exercise of its discretion, interfere, with the second finding of the Board. _ Accordingly, the application is dismissed with costs. Released: May 19, 1983 IN THE SUPREME COURT dF ONTARIO DIVISIONAL COURT ’ Griffiths, DuPont, T&nor, JJ. IN THE MATTER OF The Judicial Review Procedure Act, R.S.O. 1980, c. 224; AND IN THE MATTER OF The Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108; AND IN THE MATTER OF a decision~of the Grievance Settlement Board dated the 20th day of November, 1981, with respect to a grievance of H.S. Skinner BETWEEN: HER-MAJESTY THE Q.UEEN IN RIGHT OF ONTARIO Applicant - and - -., ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND THE GRIEVANCE SETTLEMENT BOARD Respondents ~~~~.ORAL JUDGMENT Griffiths, J.