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GRIEVANCE
SETTLEMENT
BOARD
180 MNYQ4.S STREET WEST. Tt7RONTO. ONTARIO. AIW 28-SUITE 2100 416/598-0688
October 30 , 1986
, MEMORANDUM TO: All Vice-Chairmen and Members of the
Grievance Settlement Board and the
Public Service Grievance Board
RE: 548/84
OLBEU (W. Kalichuk) and Crown/Ontario
(Liquor Control Board of Ontario)
(Draper/Freedman/Camp)
Enclosed herewith, for your information, is a copy of the Notice
of Application for Judicial Review together with the Order of the
Divisional Court with respect to the above-noted matter.
Registrar
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Encls.
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CROWN EMPLOYEES
GRIfY�NGE SET��ftE�'T .
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SUPREME COURT OF ONTARIO
AAA (Divisional Court)
IN THE MATTER OF the Judicial Review Procedure
Act, R.S.D. 1980, Chapter 224;
IN THE MATTER OF the Crown Employees
ollective Bargaining Act, R.S.O. 1980,
hapter 108 ;
AND IN THE MATTER OF an Award of the Grievance
Settlement Board, dated November 25, 1985
concerning an arbitration held pursuant to the
Crown Employees Collective Bargaining Act.
B E T W E E N:
THE LIQUOR CONTROL BOARD OF ONTARIO
Applicant
and -
THE ONTARIO LIQUOR BOARD EMPLOYEE'S UNION and
THE ONTARIO CROWN EMPLOYEE' S GRIEVANCE SETTLEMENT BOARD
Respondents
NOTICE OF APPLICATION FOR JUDICIAL REVIEW
TO THE RESPONDENT
A LEGAL PROCEEDING HAS BEEN COMMENCED by the
applicant. The claim made by the applicant appears on the
following page.
THIS APPLICATION will come on for a hearing before
the Divisional Court on a date to be fixed by the Registrar
of Divisional Court.
4
IF YOU WISH TO OPPOSE THIS APPLICATION, you or an
Ontario lawyer acting for you must forthwith prepare a
notice of appearance in Form 38C prescribed by the Rules .of
Civil Procedure, serve it on the applicant 's lawyer or,
where the applicant does not have a lawyer, serve it on the
applicant, and file it, with proof of service, in this
court office, and you or your lawyer must appear at the
hearing.
IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER
DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS-
EXAMINE WITNESSES ON THE APPLICATION, you or your lawyer
must, in addition to serving your notice of appearance,
serve a copy of the evidence on the applicant 's lawyer or,
where the applicant does not have a lawyer, serve it on the
applicant, and file it, with proof of service, in the court
office where the application is to be heard as soon as
possible, but not later than 2 p.m. on the day before the
hearing.
IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY
BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.
Date / J16 Issued by
ftmeW Regist r
• ��V4Lo.v c,rucr4j
3 -
Address of
Divisional
Court Office
Osgoode Hall
130 Queen Street West
Toronto
Ontario
M5H 2N5
TO: The Ontario Liquor Hoard Employee's Union
3063 Southcreek Road
Mississagua, Ontario
L4X 229
AND TO: The Ontario Crown Employee's Grievance Settlement
Board
180 Dundas Street West
Toronto, Ontario
M5G 1Z8
AND TO: MINISTRY OF THE ATTORNEY GENERAL
18 King Street East
18th Floor
Toronto, Ontario
M5C 105
4 -
APPLICATION
1 . The applicant makes application for an Order
quashing and setting aside the Award of the Grievance
Settlement Board made on November 25, 1985 allowing the
' grievance of the grievor Wally Kalichuk.
2. The grounds for the application are pursuant to
Rule 68 of the Rules of Civil Procedure and the provisions
of the Judicial Review Procedure Act, R.S.O. , 1980, Chapter
224 , that;
(a) The Board of Arbitration erred in law and thereby
declined jurisdiction in categorizing as extrinsic
evidence that evidence adduced by the applicant
herein relevant to the factual issue to be decided
by the Grievance Settlement Board;
(b) The Board of Arbitration erred in law and thereby
declined jurisdiction in failing to admit and
properly consider evidence relevant to the issue
before it. ;
3. The following documentary evidence will be used at
the hearing of the Application; the Affidavit of M. Patrick
Moran, the exhibits therein referred to, and such further
material as counsel may advise and this Honourable Court
permit.
Date: February 17, 1986 HICKS MORLEY HAMILTON
STEWART STORIE
Suite 1201 , Royal Trust' Tower
Box 371 , T-D Centre
Toronto, Ontario
M5K 1K1
Paul S. Jarvis 362-1011
Solicitors for the Applicant
D/C 125/86
SUPRIIAE: COURT OF ONTARIO
THE HONOURABLE MR. JUSTICE ANDERSON } MONDAY, THE 22ND DAY
THE HONOURABLE MR. JUSTICE GRZFFITH.S ) OF SEFTM-a , 1986
THE HONOU7RP.RT E MADAM JUSTICE McKINtAY )
BETWEEN :
THE LIQUOR CONTROL BOARD OF ONTARIO
Applicant
- and
THE ONTARIO LIBOR BOARD EMPLOYEE'S UNION
e
and THE ONTARIO CROWN, ENPIUUYEE'S GRM71 CE SET rlZw=r ,,7 BaUL
Respondents
0 R D E R
This application was heard this day in the presence of Counsel
for the Applicant and the Respondent, The Ontaxio Liquor Board Employee's
Union, no one appearing for The Ontario Crcwm Employee's Grievance
Settlement Board or the Attorney General of the Provice of Ontario
although properly served, as appears from the admission of sex-vice of
those parties affixed to the Notice of Application a_n3 Supporting Affidavit;
ON PZ DING TAE Notice of Application, the decisions of the
Grievance Settlement Board, dated April 2, 1984 and November 25, 1985
and the Order and Reasons for Decision of the Divisional Court dated
Thursday, the 21st day of February, 1985 and on hearing the sub issicns
of Counsel for the parties,
1. THIS CCL= .ORDERS THAT this "application be dismissed.
2 THIS COURT' ORDERS THAT the applicant pay the costs of the
Respondent, The Ontario Liquor Board IIrployee's Union of this application
forthwith after the taxation thereof-.
ENTERED AT T0RON1 U
in FILM No, 6�q
as DOCUMENT No.
OCT 7 1986
_. . .�
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No. 548/84
SUPREME COURT OF ONTARIO
(DIVISIONAL COURT)
THE HONOURABLE MADAM )
JUSTICE- , 'VAN CAMP ? THURSDAY, THE 21ST DAY OF
THE HONOURABLE MR.
JUSTICE .'WHITE ) FEBRUARY, 1985
)
THE HONOURABLE MR. )
JUSTICE AM. FITZPATRICK )
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. 19:a0.;
c. 108:
AND IN THE MATTER OF An award of the
Grievance Settlement Board, dated
April 2, 1984 concerning an arbitration
held pursuant to The Crown Employees
Collective Bargaining Act.
B E T W E E N
WALLY KALICHUK and THE ONTARIO
LIQUOR BOARDS EMPLOYEES ' UNION
Applicants
-and-
r THE LIQUOR CONTROL BOARD OF ONTARIO
and THE ONTARIO CROWN EMPLOYEES
GRIEVANCE SETTLEMENT BOARD
Respondents
O R D E R
THIS application was heard this day in the presence
of counsel for the applicants and the respondent the Liquor
Control Board of Ontario, no one appearing for the Ontario
Crown Employees Grievance Settlement Board or the Attorney
- - 2 --
( General of the Province of Ontario although properly served
as appears from the admission of service of those parties
affixed to the Notice of Application and Supporting Affidavit;
ON READING THE Notice of Application, the Grievance
of Wally Kalichuk dated July 22, 1983, the decision of the
Grievance ' Settlement Board, dated April. 2, 1984, the exhibits
thereto and on hearing the submissions of counsel for the parties,
1. THIS COURT ORDERS that the Award of the Grievance
Settlement Board made on the 2nd day of Aaril, 2984 , dismissing
the grievance of the applicant, Wally Kalichuk, dated July 22,
1983, is quashed and hereby set aside.
2. THIS COURT ORDERS that the grievance of the applicant,
Wally Kalichuk, dated July 22, 1983 be remitted to a panel of
the Grievance Settlement Board differently constituted for
rehearing in accordance with the Reasons for Decision of this
Court.
3. THIS COURT ORDERS that- the respondent, the Liquor
Control Board of Ontario pay the costs of the applicants of
this application forthwith after the taxation thereof.
ENTERED AT TORON I Q
in FILM Na.61 2-
as DOCUMENT No.f]j
APR 3 1985
j BOARDS EMPLOYEES' UNION Applicants
-and-
THE LIQUOR CONTROL BOARD OF ONTARIO
and THE ONTARIO CROWN EMPLOYEES ?
GRIEVANCE SETTLEMENT BOARD Respondents
SUPREME COURT OF ONTARIO
(DIVISIONAL COURT)
PROCEEDING COMMENCED AT THE CITY OF
TORONTO, IN THE JUDICIAL DISTRICT OF YORK
O R D E R
BLAKE, CASSELS & GRAYDON
Barristers 6 Solicitors
Box 25, Commerce Court West
Toronto, Ontario M5L 1A4
A.M. HEISEY
(4 16) 863-2741
SOLICITORS for the Applicants
i
1
No. 548/84
IN THE SUPREME COURT OF ONTARIO
DIVISIONAL COURT
VAN CAMP, WHITE AND FITZPATRICK 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 An award of the
Grievance Settlement Board, dated April
2, 1984 concerning an arbitraticn .held
pursuant to the Crown Employees
Collective Bargaining Act,
B E T W E E N
WALLY KALICHUK and THE ONTARIO LIQUOR
BOARDS EMPLOYEES ' UNION
Applicants
and
THE LIQUOR CONTROL BOARD OF ONTARIO and
THE ONTARIO CROWN EMPLOYEES GRIEVANCE
SETTLEMENT BOARD
Respondents
4
ORAL JUDGMENT
FITZPATRICK J.
sEn. ,APR 0 2 1985
No. 548/84
IN' THE SUPRE1%4: COURT OF ONTARIO
DIVISIONAL COURT
VAN CAMP, WHITE AND FITZPATRICK J.J.
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 an award )
of the Grievance Settlement )
Board, dated April 2, 1984 )
concerning an arbitration )
held pursuant to the Crown )
Employees Collective )
Bargaining Act }
B E T W E E N }
WALLY KALICHUK and THE ) L.F. Lon o
ONTARIO LIQUOR BOARDS ? or the applicants
EMPLOYEES ' UNION )
Applicants }
-and- )
THE LIQUOR CONTROL BOARD OF ) P.S. Jarvis
ONTARIO and THE ONTARIO CROWN for the respondents
EMPLOYEES GRIEVANCE }
SETTLEMENT BOARD )
Respondents ) Heard: February 21,
} 1985
2
FITZPATRICK J. (Orally)
This is an application for judicial review of an
award of the Grievance Settlement Board made in an
arbitration held pursuant to the Crown Employees
Collective Bargaining Act.
C
The Board found that there was no ambiguity in
article 5.12 (a) , yet admitted extrinsic evidence with
respect to its meaning. It then construed the article as
meaning that an assistant manager is never entitled to
the premium payment with which the article deals.
Article 5.12 (a) reads :
The Boards agree to pay a premium of four
dollars and fifty cents ($4 . 50 ) per day to
an employee acting for the Store Manager
in his absence, -.provided he is assigned to
!, act for a minimum of three (3 ) consecutive
hours. Such premium will not be paid to
an Assistant Manager in charge of the
second shift. However, it would be
applicable to the person designated to act
for the Assistant Manager in his absence
while working the second shift.
The first sentence gives an entitlement to the premium to
anv emalovee acting for a store manager in his absence,
provided he is assigned to act for a minimum of three
i
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consecutive hours . The third sentence has no relevance
to this grievance. The second sentence not only does. not
take away the entitlement. given to an assistant manager
who has� been assigned to act and has acted for a minimum
of three consecutive hours for a store manager in his
absence in charge of the first shift; it clearly implies
he is entitled to the premium in.those circumstances.
Because of the way the Board construed the
article, it made no finding of fact, as it ought to have,
as to whether the grievor had been assigned to act and
had acted for the store manager in his absence in charge
of the first shift for a minmium of three consecutive
hours.
The application is allowed. The decision of the
Board is quashed. The grievance is remitted to a
i
different panel of the Board for a rehearing in
accordance with the construction we have placed on the
article.
The applicant shall have his costs of this
application.
Cam---�