The Brant Haldimand Norfolk Catholic District School Board, 2014 ONSC 1657
DIVISIONAL COURT FILE NO: 129/13
DATE: 20140411
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, SACHS and WHITAKER JJ.
B E T W E E N:
Ontario Secondary School Teachers’ Federation
Applicant
- and -
The Brant Haldimand Norfolk Catholic District School Board, et al
Respondents
Susan Ursel and Karen Ensslen, for the Plaintiff
Dolores M. Barbini, for the Respondents
HEARD at Toronto: January 29, 2014
WHITAKER J.:
Introduction
[1] This is an application for judicial review of a decision of a Board of Arbitration (the “Board”), dated October 30, 2012.
[2] The Board was consensually appointed under the arbitration provisions of the collective agreement between the parties. The Board consisted of Howard Brown (Chair), Michael Riddell (employer nominee) and Bob Morose (union nominee).
[3] The parties to the arbitration were the Ontario Secondary School Teachers’ Federation (the “union”) and the Brant Haldimand Norfolk Catholic District School Board (the “employer”).
[4] In the arbitration award the majority (Brown and Riddell) determined that the grievor was not entitled to a pension following 31 years of continuous and mostly full time employment. This decision was made on three bases; firstly, they found that they lacked jurisdiction to deal with any period of time prior to the first collective agreement entered into by the parties, which did not come into effect until September 1, 2003. Secondly, they found that the grievor had waived his right to pension benefits. Thirdly, they found that the doctrine of laches should be applied to bar the grievance since the employer had established that the passage of time had prejudiced its ability to call a witness that could have helped prove that the grievor had waived his rights to a pension.
[5] Mr. Morose dissented and found the grievor was entitled to a pension.
[6] The union asserts that the grievor, Ernest Hayward (“Hayward”), is entitled to a pension from the Ontario Municipal Employees Retirement System (“OMERS”). More particularly, the union asserts:
• that the Board did have jurisdiction within the period of time prior to the first collective agreement;
• that laches does not apply;
• that the collective agreement, underlying legislation and plan documents do not contemplate waiver;
• that participation in the plan is mandatory;
• that full time membership in the plan is administered and enforced by the employer;
• that the employer and not the grievor is responsible, for ensuring compliance; and
• that the decision of the Board is unreasonable.
The employer disagrees and argues:
• that the Board did not have jurisdiction to deal with the period prior to the first collective agreement;
• that laches applies;
• that the grievor is not credible;
• the griever has waived his pension entitlement several times;
• that the employer is entitled to rely on the grievor’s waiver; and
• the award is reasonable.
[7] For reasons which follow, this court finds that the decision of the Board is unreasonable on a standard of reasonableness. The application is allowed. The matter is remitted to the hearing panel to determine outstanding issues in light of our findings.
Overview
[8] The grievor was hired as a caretaker by the employer on November 1, 1969. Before working in the job, he moved to Ontario from the Maritimes where he had obtained a grade five education. There is some dispute as to when he became a full time employee as full time hours initially were determined by the size of the school the caretaker was responsible for - rather than the number of worked hours.
[9] In any event, it is agreed that the grievor became a continuous full time employee no later than September 1, 1991 and remained so until his retirement.
[10] The union became the bargaining agent for caretakers in March 2003. The first collective agreement between the parties came into effect on September 1, 2003.
[11] The grievance was filed on March 27, 2009.
[12] The hearing commenced on April 12, 2010.
[13] The employer raised a preliminary matter on the first day of hearing. The employer sought a ruling on the jurisdiction of the Board to deal with and dispose of the union’s claim to a remedy which precedes the current collective agreements under which the grievance arose.
[14] The Board issued an interim award on January 18, 2011. The Board indicated that it had the jurisdiction to deal with those rights vested under the terms of the two collective agreements cited in the grievance. The Board deferred its decision on the balance of the jurisdictional question dealing with any potential remedy for the period preceding the first collective agreement.
[15] The hearing resumed on the merits.
[16] The employer called witnesses to establish that the grievor was on a number of occasions asked by the employer if he wished to participate in the plan or had agreed and perhaps signed a waiver of any entitlement to a pension.
[17] The griever testified that he does not recall waiving any right to a pension. It is not clear from the testimony given at the arbitration hearing whether there exists a reliable record kept of any waiver that might have been made on the grievor’s behalf.
[18] The grievor’s wife received an OMERS pension. The grievor was aware of the fact that his wife received mail from OMERS – but that he did not.
[19] The grievor did not at any time prior to the grievance pursue a pension. The grievor maintains that he thought he was entitled to a pension and the employer would look after the arrangements. He states that he never waived or gave up his entitlement to a pension.
[20] The grievance was dismissed on October 30, 2012. The majority found the grievor to be incredible and rejected his evidence where it varied from the evidence provided by the Board’s witnesses. Most importantly and at the heart of the employer’s case, the majority found that the grievor had more likely than not, waived his entitlement to a pension.
[21] The majority found that laches applied and further, that it had no jurisdiction over the period of time preceding the first collective agreement.
The Standard of Review
[22] The parties agree that the appropriate analysis to be used to determine standard of review is that set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and Newfoundland and Labrador Nurses’ Union v. The Queen in Right of Newfoundland.
[23] Reasonableness must be determined on an inquiry into three facets of the decision under review - intelligibility, transparency and justification. Rarely will the standard of review be one of correctness (Alberta (Information and Privacy Commissioner) v. Alberta Teachers Association 2011 SCC 61, [2011] 3 S.C.R 654). It is fair to say that decisions of labour arbitrators are entitled to significant deference and their decisions are prima facie reviewed on a standard of reasonableness. A reasonable decision will fall within the range of reasonable outcomes justifiable in fact and the law.
[24] The standard of review to be applied to the Board’s decision is reasonableness.
The Provisions of the Collective Agreement
[25] Since the collective agreement was first introduced, the provisions of the OMERS plan were expressly incorporated by reference with the language that “Participation in the OMERS program shall be in accordance with the applicable legislation”. The most recent collective agreement has this provision in article 18.02 but it has remained unaltered since the first collective agreement.
[26] The terms of the collective agreement contemplate the enforcement and administration of all full time employees’ enrollment in the plan. More particularly, the collective agreement asserts that the plan membership must be consistent with statute and regulations.
[27] The plan documents are made and filed with the plan administrator, the regulator and the Canadian Revenue Agency.
[28] Under the heading of “Duties of Employers” the plan document clearly contemplates that it is the responsibility of the employer to supervise and manage employee and employer compliance. This includes the obligation of mandatory enrollment for full time employees.
[29] There is no provision for waiver of any kind – either implicit or explicit. To reiterate, full time employees must be members of the plan as a condition of employment – they cannot “elect” to not participate.
Discussion
[30] The issue for the court is whether the decision of the Board on the merits withstands review on the appropriate standard, which we find to be the standard of reasonableness.
[31] The Board’s jurisdiction over the subject matter of this dispute is derived from the collective agreement, which is clear. Management has an obligation to ensure that full time employees are members of the plan as of the date that they become full-time employees. That obligation came into effect when the first collective agreement was put in place and is a continuing one. Thus, it was unreasonable for the majority to conclude that it did not have jurisdiction with respect to the time period covered by the first collective agreement.
[32] The next issue is whether there is a factual basis to support the majority decision that the grievor waived his rights to be enrolled in the pension plan.
[33] In our review of the facts, there are five areas which are dispositive:
• that the grievor was full time for most of his employment;
• for most of the grievor’s employment, membership in the plan was mandatory and as a condition of employment;
• waiver was not possible;
• the employer bore the obligation to ensure the employee’s enrollment and compliance with the plan; and
• the plan had to conform with and be subject to all governing legislation and regulation.
[34] In our view, there is no basis in fact for the assertions made by the employer that participation in the plan for full time employees was or is in any way voluntary or subject to an election.
[35] There is no basis for an interpretation of the plan documents, statute and regulations that would permit the conclusion that any portion of entitlement under the plan as a full time employee could be waived either expressly or implicitly.
[36] Having reviewed the record before the Board of Arbitration, there are no findings of fact that would permit the conclusion that the grievor could and did waive his entitlement for a pension. As waiver is not permissible or contemplated under the pension scheme as described here, it matters not whether laches applies as the issue of laches only goes to the argument of waiver.
[37] The equitable defence of laches is directly related to the factual question regarding waiver. According to the Board, the defence of laches should be invoked in view of the fact that the employer’s case, with respect to the question of whether the grievor had waived his rights to a pension, had been prejudiced by the passage of time. As waiver is not permissible or contemplated under the pension scheme as described here for the period when the grievor was a full time employee, it matters not whether laches applied as the issue of laches only went to the argument of waiver.
[38] Further, on the employer’s evidence, it mistakenly misled the grievor concerning his rights to be enrolled in the pension plan. It would be unreasonable for the employer to mislead an employee about his or her rights under the collective agreement and then argue an equitable defence such as laches when the employee eventually discovers that they have been misled and seeks to enforce his or her rights.
[39] The collective agreement provides that the terms of the pension shall be as determined by legislation.
[40] It is undisputed that the grievor was obliged to participate in the plan as a full time employee.
[41] Furthermore, the legislation and plan documents provide that the grievor must, as a full time employee, participate in the plan as of the date that he became a full time employee. Under the collective agreement it was the employer’s responsibility to ensure that the grievor was given all of the rights that he was entitled to by statute.
[42] It is further undisputed that the plan makes no provision for waiver for a full time employee and this was, therefore, not available to the grievor even if that were his wish.
[43] Applying the standard of review in Dunsmuir as referred to above, we find there to be a complete absence of evidence that would support the conclusion that the grievor waived his entitlement or that such an option were indeed available to him.
[44] We acknowledge that a labour arbitration panel chosen by the parties has a significant expertise which should attract considerable deference. We take no issue with the employer’s assertion that our job is not to rehear the matter, but rather simply confine ourselves to a review on the reasonableness standard.
[45] Here the arbitration panel found that the grievor must have in some way waived his entitlement and that is the real basis for the award. The difficulty for the employer, however, is that the collective agreement, the legislation and the plan documents do not contemplate waiver and place all responsibilities for the administration of the plan on the employer.
[46] We find that there is no evidence to support the Board’s factual conclusions.
[47] The decision under review falls below the reasonableness standard.
Outcome
[48] The decision is unreasonable. The application is granted and the award is quashed.
[49] We accept the employer’s proposal that the matter should be remitted to the panel to determine the outstanding issue in accordance with our findings. This issue concerns whether the grievor was a full time employee prior to September 1 1991. To be clear, we find the griever was full time at the latest, September 1, 1991. The grievor could not waive his entitlement for any period during which he was a full time employee, and the employer is obliged to ensure that he was enrolled in the plan. We also find that the grievor’s service for pensionable earnings runs from his first day of full time employment until his retirement date.
[50] Written submissions as to costs may be made, no longer than three pages within 20 days.
Whitaker J.
Kent J.
Sachs J.
Date: April 11, 2014
The Brant Haldimand Norfolk Catholic District School Board, 2014 ONSC 1657
DIVISIONAL COURT FILE NO: 129/13
DATE: 20140411
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, SACHS and WHITAKER JJ.
BETWEEN:
Ontario Secondary School Teachers’ Federation
Plaintiff
- and –
The Brant Haldimand Norfolk Catholic District School Board, et al
Defendants
REASONS FOR JUDGMENT
Whitaker J.
Released: April 11, 2014