Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Health and Long-Term Care), 2002 CanLII 45745

GSB#1495/00, 1569/00, 1609/00, 1614/00

UNION#01U008, 01U017, 01U013, 01U014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Union Grievance)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Health and Long-Term Care)

Employer

BEFORE Richard Brown Vice-Chairperson

FOR THE GRIEVOR David Wright

Counsel

Ryder Wright Blair & Doyle

FOR THE EMPLOYER John Smith

Senior Counsel

Legal Services Branch

Management Board Secretariat

HEARING January 7, 2002.

DECISION

These four union grievances concerning pensions arise out of the recent transfer of psychiatric facilities from the provincial government to hospitals in the broader public sector. This second interim decision deals exclusively with the employer’s preliminary objection that the grievances are untimely. As the union concedes they were not filed within the time limits specified in the collective agreement, the only issue is whether I should grant an extension of time under s. 48(16) of the Labour Relations Act, 1995.

The factual backdrop for the grievances is described in the first interim decision, dated December 20, 2001, Ministry of Health and OPSEU, GSB File 1495/00:

Psychiatric facilities formerly 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 psychiatric 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 former crown employees being enrolled in HOOPP pending a determination 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 timeliness 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 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 within the following week. Each transfer agreement contains the following provision about pensions:

Subject to decision by the Hospital to become a participating Employer in the OPSEU Pension 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 [psychiatric hospitals] immediately prior to the Changeover Date and whose exit from the Plan Membership and from the Ontario Public Service occurred as a result of the transfer of the PHs to the Hospital. The Hospital must notify the Crown of the election prior to the effective date of a new Collective Agreement covering 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 Ontario 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 Secretariat, 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.

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 interim relief came on for hearing before Madame Justice Kitely on November 20, the employer offered to waive any timeliness objection if the union withdrew its application and referred the matter to arbitration, but this offer was rejected. Interim 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 interim relief because it had not demonstrated irreparable harm. As to OPSEU’s application for permanent relief, the court concluded OPT was incorporated into the union’s collective agreement with the Crown and that all pension issues arising from the transfer of the Brockville facilities fell within the exclusive jurisdiction of the Grievance 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 grievances at hand, one for each institution, with London and St. Thomas being treated as an integrated operation. The grievance 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 grievance. The other two grievances were filed shortly before the transfer of facilities and the contemporaneous enrolment of employees in HOOP.

II

To calculate the length of the union’s delay in grieving, I must first determine which time 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 union advances three alternative grounds for this argument: the first based on Appendix 11; the second based on article 2.1 of Appendix 18; and the third based upon the combination of Appendix 9 and article 6.0 of Appendix 18.

Insofar as the grievances are based upon Appendix 11 or article 2.1 of Appendix 18, counsel for the province concedes the time limit is the one generally applicable to the filing of policy grievances as set out in article 22.13.1:

Where any difference between the Employer and the Union arises from the interpretation, application, administration or alleged contravention of the Agreement, the Union shall be entitled to file a grievance at the second stage of the grievance procedure provided it does so within thirty days following the occurrence or origination of the circumstances giving rise to the grievance.

In my view, this provision also applies insofar as the union alleges a contravention of Appendix 9.

The union contends the same time limit applies to the grievances insofar as they are based on article 6.0 of Appendix 18. According to the employer, the time 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, municipality or other employer in respect of transfers under Schedule 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 within a seven (7) calendar day time period and the matter must be resolved within that time period.

This time limit is much more stringent than article 22.13.1. Article 8.3 requires a grievance to be resolved, not just filed, within 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 this line of argument, the time limit in article 8.3 is not applicable to matters of implementation including the instant dispute.

Does article 8.3 of Appendix 18 apply to the aspect of these grievances 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 this 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 6.0. The purpose of the strict time 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 grievances insofar as are based on article 6.

III

The next step in calculating the length of the delay in filing these grievances is to determine when time began to run for the purpose of applying the appropriate time limit.

Counsel for the province first argued time runs from the union’s receipt of the transfer agreements in the early months of 2000. In the alternative, he submitted time runs from September 7, 2000 when the union received a letter from the Ontario Hospital Association stating the hospitals had chosen HOOPP. According to counsel for the union, time runs from the union’s receipt of Ms. Noble’s letter, dated September 21.

I begin my analysis of this issue by considering article 22.13.1. It states a grievance is to be filed within thirty days of “the occurrence or origination of the circumstances giving rise to the grievance.” What are those circumstances in this 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 this question.

When a contractual time limit is ambiguous as to when the clock starts to tick, an arbitrator may be called upon to resolve this ambiguity. The arbitral jurisprudence on this subject is summarized in the following passage from Brown and Beatty, Canadian Labour Arbitration:

Many collective agreements fix time-limits within which a grievance is to be filed ... Such provisions may raise questions as to when the grievance first arose, although it has been held that a grievor need not anticipate a breach of the collective agreement and can wait until the breach crystallizes. (2:3128; emphasis added)

The authors of Brown and Beatty cite two cases on point: Standard Bread Co. and Milk and Bread Drivers (1963), 13 L.A.C. 327 (Thomas); and Canadian Broadcasting Corp. and Canadian Union of Public Employees (1985), 1985 CanLII 5396 (CA LA), 21 L.A.C. (3d) 389 (M. Picher).

The collective agreement in Standard Bread stated a grievance must be launched within five days after “the event giving rise to the grievance” page 327). The grievor was told a certain amount would be deducted from his 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 time for filing a grievance about the deduction did not begin to run until the issuance of the cheque. In other words, time 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 Ontario Nurses’ Association (1984), 1984 CanLII 5260 (ON LA), 15 L.A.C. (3d) 376 (Brent).

In Canadian Broadcasting Corp., the collective agreement required a grievance to be filed within thirty days of “the employee becoming aware of the incident” (page 392). The employer told the grievor her probationary period was being extended and she was later dismissed during the extension. Arbitrator Picher concluded the time for objecting to the extension ran from when the grievor was terminated as a probationary employee, not from when she learned management was extending the period during which such a termination was possible. The rationale for this conclusion was succinctly stated:

It is fair to assume that the parties did not intend to burden the grievance procedure with disputes and claims that are purely theoretical and without practical consequence. (page 393)

For this reason, Arbitrator Picher held time 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 Unit and Ontario Nurses Association, unreported decision, dated January 11, 1985.

The general principle emerging from these cases is that the time for filing a grievance runs from the occurrence of some real detriment 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 this principle to the instant case, I conclude time began to run under article 22.13.1, not in the winter of 2000 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 time begins to run. The seven days for resolving a grievance under article 8.3 runs from the date a transfer agreement is provided to the union.

IV

Section 48(16) of the Labour Relations Act permits a time 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 time limits: Greater Niagara General Hospital and Ontario Nurses Association (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff); Kitchener Waterloo Hospital and London and District Service Workers’ Union (1994), 1994 CanLII 18757 (ON LA), 44 L.A.C. (4th) 293 (H.D. Brown); OLBEU and Liquor Control Board of Ontario, GSB File 2216/97, dated June 12, 1998 (Knopf); OPSEU and Ministry of Transportation, GSB File 2231/97, decision dated June 14, 1999 (Gray); OPSEU and Ontario Realty Corporation, GSB File 1811/98, decision dated February 19, 2001 (Herlich). I was referred to additional cases by union counsel: McMaster University and Service Employees International Union (1993), 1993 CanLII 16657 (ON LA), 31 L.A.C. (4th) 257 (Brunner); Ferranti-Packard Transformers Ltd. and United Steelworkers of America (1993), 1993 CanLII 16683 (ON LA), 36 L.A.C. (4th) 307 (Haefling); Metropolitan Toronto Licensing Commission and Canadian Union of Public Employees (1995), 1995 CanLII 18284 (ON LA), 47 L.A.C. (4th) 182 (Springate); Consumers Glass and United Steelworkers of America (2000), 89 L.A.C. (4th) 400 (Albertyn); and OPSEU and Ontario Clean Water Agency, GSB File 1111/99, decision dated March 19, 2001 (Johnston).

In Niagara General Hospital, Professor Schiff cited with approval the award in Becker Milk Company and Teamsters Union (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett) listing three factors to be considered in determining whether there are reasonable grounds for an extension:

1. the reason for the delay;

2. the length of the delay; and

3. the nature of the grievance.

Professor Schiff added three additional factors to this list

1. whether the grievor was responsible for the delay;

2. whether the delay occurred in filing the grievance or later in the grievance process; and

3. whether the employer could reasonably have assumed the grievance had been abandoned.

V

Should I extend the time limit in article 22.13.1 for filing a grievance alleging a violation of Appendix 9, Appendix 11 or article 2.1 of Appendix 18? In answering this question, I begin by considering whether there are reasonable grounds for an extension.

I have already determined that time under article 22.13.1 began to run when the union received the letter of September 7th from the Ontario Hospital Association. The time lapse between receipt of this letter and filing of a grievance varies slightly from one site to another, ranging from a low of approximately four and one-half months to a high of approximately five months. As the time limit in article 22.13.1 is thirty days, the grievances were between three and one-half and four months late.

Most of this 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 Divisional Court on January 5, 2001. OPSEU initially succeeded in obtaining interim relief but lost on appeal.

The union delayed in filing any grievance, but the employer was promptly put on notice that there was a dispute about pensions. Within a week of receiving the September 7th letter, Ms. Casselman wrote to Ms. Noble informing 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 grievances is pensions. The outcome could have financial repercussions for employees throughout their retirement. Weighing this factor along with all of the others, I conclude there are reasonable grounds for granting an extension.

Would an extension of time cause substantial prejudice to the employer? The grievances should have been filed in the first part of October 2000 but were not filed until early 2001. Did anything 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 immediately 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 time to change course, but the Hamilton transfer occurred almost a month later while a judicial decision was still pending. As a lawsuit did not result in the Hamilton transfer being postponed, it is unlikely a grievance would have derailed either transfer. I conclude the province, in carrying out these transfers, did not rely to its detriment on the absence of a grievance. Accordingly, an extension of time would not prejudice the employer.

I hereby extend the period for filing these grievances under article 22.13.1 insofar as they are based upon Appendix 9, Appendix 11 or article 2.1 of Appendix 18. To this extent, the employer’s timeliness objection is dismissed.

V

Very different considerations arise in deciding whether to extend the time limit in article 8.3 of Appendix 18 for filing a grievance alleging a violation of article 6.0 of that appendix.

I have already determined 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 time lapse between the receipt of the transfer agreement for a particular site and the filing of a grievance ranges from a low of ten months for the London/St. Thomas facility to a high of 13 months for the Hamilton facility. Delays of this 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 within an extremely short time-frame. Article 8.3 requires not only that a grievance be filed within seven days, but also that it be resolved within those same seven days.

Between the union’s receipt of the transfer agreements, during 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 during this period.

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 time under article 8.3 of Appendix 18, despite the importance of pensions to retired employees.

The grievances are dismissed as untimely insofar as they allege a violation of article 6.0 of Appendix 18. To this extent, the employer’s timeliness objection is sustained.

Dated at Toronto, this 24th day of January, 2002.

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 Psychiatric 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 union grievance regarding the transfer of governance of Brockville was filed by OPSEU on January 28, 2000. No issue regarding the transfer of employee pensions was grieved.

3. A hearing was convened on February 2, 2000 before the Crown Employees Grievance Settlement Board (“GSB”). At this hearing, 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 Psychiatric 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, Lori Findleton, Vice President of the Ontario Hospitals Association wrote to Ms. Casselman advising her that the Receiving Hospitals have chosen Hospitals of Ontario Pension Plan (“HOOPP”) as the pension plan which will apply to the transferred employees once the transfers have occurred.

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 grievance regarding the transfer of Brockville was filed by OPSEU on September 11, 2000. Details of the grievance were provided in letters from counsel dated September 11 and 14, 2000. No issue regarding the transfer of employee pensions was grieved. On September 15, 2000 the parties reached a settlement which resolved all outstanding union grievances arising out of the transfer of Brockville.

8. On or about September 13, 2000, Ms. Casselman wrote to Michele Noble, Deputy Minister of the Management Board Secretariat, 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.

13. On or about October 16, 2000, the Crown transferred to Royal Ottawa the operations of the Brockville Psychiatric Hospital.

14. On or about October 16, 2000, Royal Ottawa became the employer of the former public servants of the Ministry of Health and Long‑Term Care (“Ministry”) employed at the Brockville Psychiatric Hospital who had accepted job offers from Royal Ottawa to continue employment at the Brockville Psychiatric Hospital.

15. As public servants in bargaining units 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 Superior 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 Psychiatric Hospital in the HOOPP.

17. The injunction was to be temporary until OPSEU’s application for a permanent order requiring the employees to remain members of the OPSEU Pension Plan could be heard by the court. The main application was originally scheduled to be heard on February 23rd 2001.

18. Madame Justice Swinton adjourned the matter to be heard on November 20, 2000. The hearing 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.

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.

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 Psychiatric 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 jurisdiction 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 jurisdiction to hear the matter and that grievances could have been brought under any one 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 Friday 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 jurisdiction to hear the injunction and no jurisdiction 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 jurisdiction 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 grievance procedure under the Collective Agreement to grieve 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 arising 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 grievance 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.

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 Psychiatric 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 Psychiatric Hospital to St. Mary’s on the Lake Hospital.

• On or about January 24, 2001, OPSEU filed a grievance 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 Psychiatric 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 Psychiatric Hospital to St. Joseph’s Health Services Association of London.

• On or about January 18, 2001, OPSEU filed a grievance 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 Psychiatric 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 Psychiatric Hospital to St. Joseph’s.

• On or about January 18, 2001, OPSEU filed a grievance 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 Psychiatric 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 Psychiatric Hospital to St. Joseph’s Health Care Group.

• On or about February 9, 2001 OPSEU filed a grievance with respect to the transfer of employees’ pensions.

45. OPSEU did not file any grievances with respect to the transfer of employee’s pensions prior to Jan. 18, 2001.