GSB# 1999-1841

UNION# 00B065

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Seager)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Community, Family and Children’s Services)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Nick Coleman

Paliare Roland Rosenberg Rothstein LLP

Barristers and Solicitors

FOR THE EMPLOYER

Ferina Murji

Counsel

Management Board Secretariat

HEARING

April 30, 2003.

Decision

On November 15, 1996 the grievor, Kathryn Seager, filed a grievance that stated as follows:

I grieve Management’s actions as failing to accommodate me and the failure to provide a healthy and safe workplace environment in violation of article 18.1. Management has discriminated against me in violation of article 1.2 of the collective agreement, but not exclusively so.

The remedy requested:

Management provide acceptable accommodation and Health and Safe work environment. Management shall reimburse all economic losses with full redress. Management shall cease and desist from further discrimination and any other remedies the GSB and other jurisdictions appropriate.(sic)

By letter dated February 25, 1997, the Deputy Minister’s designate wrote to the grievor advising her that the Union and Management had held a second stage grievance meeting in her absence on February 21, 1997and that, as a result of that meeting, her grievance was denied. A copy of the letter was sent to the local President.

The Employer did not take issue with the Union’s assertion that the grievor never received that letter.

The next correspondence on the file is dated February 2, 2000 and refers the grievance to arbitration.

Ms. Murji, counsel for the Employer, raised a preliminary objection to my jurisdiction to proceed on the basis of the significant delay between the second stage meeting and the referral for arbitration. It relied on article 22 of the Collective Agreement which reads, in part, as follows:

22.4 If the grievor is not satisfied with the decision of the Deputy Minister or his or her designate or if he or she does not receive the decision within the specified time the grievor may apply for a hearing of the grievance within fifteen (15) days of the date he or she received the decision.

22.14.1 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed, it shall be deemed to have been withdrawn.

22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the collective agreement.

The parties met on October 15, 2001 in an effort to mediate the dispute. The Ministry however, did so without prejudice and specifically reserved its rights to rely on the timeliness objection if the matter was not resolved. It was not and the issue came before me as a preliminary objection to my jurisdiction.

Ms. Murji, counsel for the Ministry, referred to two earlier GSB decisions that held that the time limits in the collective agreement are mandatory (Rolse and Ministry of Correctional Services (February 21, 1990), Watters (GSB#1116/89) and Forbes and Ministry of Health (August 5, 1993) Devlin (GSB #3187/92)). She conceded however that both of those decisions pre-dated the amendments to the Crown Employees Collective Bargaining Act which incorporated section 48.16 of the Ontario Labour Relations Act and states as follows:

48.16 Extension of Time: except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement despite the expiration of the time, 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.

The Ministry submitted that the case of Bertrand and the Ministry of Health (April 12, 1995) (Mikus) GSB# 1998/93 et al) was analogous to this case and should be followed by this Board. In that case the grievor had filed three grievances, one dated September 18, 1990 and two others dated December 5, 1991, all alleging discrimination on the basis of handicap and all asking to be returned to work on a rehabilitation program approved by her doctor. A pre-hearing was held in April of 1991 to discuss the first grievance and an agreement was made which allowed the grievor to return to work as soon as possible but not before 1992. No minutes of settlement were signed and no formal agreement to withdraw the grievance was given by the Union at the time. Subsequent to that grievance meeting, two additional grievances were filed and there was confusion about when rehabilitation programs were to start and whether in fact they had been completed. That confusion lasted until December of 1994. During that time the Employer was of the view that the grievances had been withdrawn and that the grievor had decided to proceed to the Ontario Human Rights Commission. The Employer objected to the grievance on the grounds that it was outside of the time limit prescribed in the collective agreement and therefore was deemed to have been withdrawn. The Union asked the Board to extend the time limit pursuant to the Labour Relations Act. The Board concluded that the grievances had in fact been settled through the various meetings and that the Employer was entitled to conclude that the matter had been resolved. In the circumstances it refused to exercise its discretion to extend the time limit.

Mr. Coleman, counsel for the Union, took the position that this was an appropriate case for the Board to exercise its discretion and extend the time limits. In doing so it ought to have regard to the rational set out in Becker’s Milk Company (Re: Becker Milk Company Ltd. And Teamsters Union, Local 647 (1978), 19 L.D.C. (2d) 217). In that case the Board determined that an arbitrator should have regard for the reasons for the delay, the length of the delay and the nature of the grievance. In this case, the reason for the delay is simply that the grievance, once forwarded to the Union’s head office, got lost. No one can explain how it went astray except to say that it was during the backlog experiment, a time of extreme stress for the parties. Mr. Coleman conceded that the length of the delay was considerable, approximately three years between stage two and the referral to arbitration in February of 2000, but he asserted it was not the longest delay for which an arbitrator has exercised its discretion to extend time limits. In fact, one of the cases cited in the Becker case involved a twelve year delay. Nevertheless that case went ahead. In the instant case the Employer was aware of the grievance and cannot argue that there has been any prejudice. The grievor has continuously claimed accommodation and sought a cessation of her alleged harassment. It was argued that the nature of the grievance also suggests that an extension would be appropriate. This grievance arises from a failure to accommodate, failure to provide a healthy and safe work environment and harassment. These are not trivial matters and are of great significance to the grievor. The grievor is entitled to have these issues determined by a Board of Arbitration. She has continued with her grievance during all this time and has never given any suggestion that she was prepared to withdraw.

In reply, the Employer took the position that the reasons for the delay should be rejected by this Board. The Employer will be prejudiced if it is forced to proceed given the long delay. This Board should assume that people’s memories will fade over time, especially since they believed that the matter had been resolved.

In support of its position the Union relied on the following cases Pepsi Cola Canada Beverages v. Dollar (1999), N.D.J. No. 526 (N.B.C.A.): Ajax Precision Manufacturing (Triton Division) and United Steelworkers of America, Local 9042 (1999), 1999 CanLII 35830 (ON LA), 85 L.A.C. (4^th) 280 (Shime): Re Dana Brakeparts Canada Inc. and Canadian Autoworkers Union, Local 199 (2000), 2000 CanLII 50136 (ON LA), 90 L.A.C. (4^th) 387 (Rose): Re Becker’s Milk Co. Ltd. and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d), 217 (Burkett): Re Greater Niagara General Hospital and Ontario Nurses’ Association (1991), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Shiff): Re Bombardier Aerospace and Canadian Autoworkers, Local 112 (2001), 2001 CanLII 62127 (ON LA), 97 L.A.C. (4^th) 309: OPSEU (Harju) GSB #2007/96: OPSEU (Khadr) GSB # 1391/99; OPSEU (Palazzo) GSB #1455/97: Re Headingly Correctional Institute and Manitoba Government Employees Association (1986), 1986 CanLII 6639 (MB LA), 28 L.A.C. (3d) 341 and Geralton District for Community Living and Canadian Union of Public Employees, Local 3426 (1994), 1994 CanLII 18765 (ON LA), 42 L.A.C. (4^th) 327 (Palmer).

The Employer submitted the following additional cases: Re Ontario Teachers’ Pension Plan Board and OPSEU (1998), 1998 CanLII 30103 (ON LA), 72 L.A.C. (4^th) 390 (Tacon); Re Board of Eduction for the City of Toronto and CUPE, Local 3111 (1997), 67 L. A. C> (4^th) 144 (Joachim); Cherry and Ministry of Finance (2003), GSB # 0626/01 (Gray) and Szabo and Ontario Realty Corporation (2003), GSB # 1811/98 (HErlich).

The day after the hearing the Board received a letter from Ms. Murji asking that the decision in this matter be held until further notice. That letter was followed by another letter asking that the Board reconvene to allow the Employer to make further submissions on its motion to dismiss the grievance on the basis of timeliness. The grounds for the Employer’s request to reopen the hearing were based on legislative changes to the Labour Relations Act and a subsequent Ontario Court of Appeal decision interpreting those amendments.

At the time section 45(6), which was essentially identical to 48(16), allowed an arbitrator or arbitration board to extend the time on the limits for taking “any step” in the grievance procedure. The question of what those words meant became the subject of litigation and, in 1992, the wording of the section was amended to provide that an arbitrator or arbitration board could extend the time limit for any step in the grievance or arbitration procedure under collective agreement. The addition of the words “arbitration procedure” was intended to clarify an arbitration board’s authority to relieve against time limits at any stage of the process, including the referral to arbitration. That provision was appealed in 1995 and replaced by the Labour Relations Act 1995. The operative provision now is:

48 (16) Except for situations where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under collective agreement, despite the expiration of the time, where an arbitrator or arbitration board decides that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.

In the case of Re Leisure World Nursing Homes Ltd. and Service Employees International Union, Local 204, Arbitrator Verity dismissed a grievance on the basis that he had no authority to relieve against time limits involving a referral to arbitration. The Board found that the earlier version of the Labour Relations Act expressly conferred jurisdiction on a Board to relieve against time limits at any step in the grievance or arbitration process. The amendment deleting the express reference to the arbitration process was intended to remove any authority for an arbitrator to relieve against time constraints in the arbitration process. The Union appealed the decision and the appeal was denied. In that appeal the Court stated clearly that the Labour Relations Act did not confer jurisdiction on a Board to relieve against time limits in the arbitration process. The decision of the Divisional Court was affirmed by the Court of Appeal in 1997.

Ms. Murji took the position that, in presenting their argument on the first day of hearing she had failed to make the Board aware of the most recent jurisprudence and felt that the Board should not make a decision in the absence of those decisions. It was her position that the Board ought to make its ruling based on the current state of the law and therefore it had an obligation to consider further submissions in that regard.

Mr. Coleman took the position that this Board should not allow the Employer to reopen the hearings. The issue was fully argued and reopening the hearing would be inconsistent with the orderly process of arbitrations.

It was my ruling at the time that we would proceed with argument on the merits and I would decide the issue of the reopener in the final award.

Mr. Coleman took the position that if this Board is prepared to consider the Leisure World award, it is not dispositive of the issue. The Leisure World decisions and others that have followed are based on the Courts and arbitration board’s views that the arbitration and grievance procedures are distinct processes and therefore it requires explicit language to give an arbitrator jurisdiction to extend time limits under each of them separately. However, there have been decisions that have taken a different approach. It was submitted that where the grievance procedure in a collective agreement combines the grievance and arbitration process, any issue concerning the timely processing of a grievance should be considered together, including any contractual or statutory discretion to extend time limits.

Decision

Dealing with the issue of reopening the hearing, the Union relied on several decisions in support of its submissions. Two of those decisions deal with the issue of post hearing submissions (Walker Estate v. York Finch General Hospital [1998] O.J. No. 2271 (June 3, 1998) and Goodyear Canada Inc. v. Jet Centre Management Ltd. [1998] O.J. No. 4124 (Ontario Court of Justice, October 13, 1998)). In the Walker case the Court was reconvened on the issue of costs. In its deliberations it commented on events that had occurred subsequent to the conclusion of the hearing, namely correspondence received from one counsel. These materials were not invited nor requested by the Court. The Court criticized any communications by one party after a hearing has been concluded and stated emphatically that a judge need not consider uninvited communications sent directly to him or her in those circumstances. He stated that the practice that had developed of doing so should stop. He further stated “if counsel feels compelled to continue a hearing after its conclusion, he or she should follow the appropriate procedure by bringing the appropriate motion.”

In the Goodyear case a similar situation occurred. Subsequent to the conclusion of the hearing, a copy of a decision involving the same parties in a separate action was faxed to the Court by counsel for the applicant without notice or consent of the respondent. The court stated that it was inappropriate for one party to communicate directly with the presiding judge subsequent to the conclusion of a hearing unless it has obtained consent of the opposing counsel. It further suggested that counsel for the applicant had the means to reopen the hearing if he so wished. As a result the Court refused to consider any materials or evidence before it other than those that were filed at the actual hearing.

In the case of Docouto v. Ontario (September 8, 2000 Ontario Court of Justice [2000] O.J. No. 3322) counsel for one of the parties provided the Court with further authorities and requested the opportunity to make additional submissions. The other party objected and the Court ruled that it would not permit any further submissions or consider further authorities. It did so for the reasons stated in the Walker decision (supra).

In the Becker Milk Co. Ltd. et al. v. The Consumers Gas Co. (1974), 2 L.R. (2d) 554 the Ontario Court of Appeal dealt with the issue of additional evidence. It suggested that until judgment was issued a trial judge had discretion to determine whether to admit further evidence if he or she were satisfied that the matter had come to the knowledge of a party after the trial, could not, with reasonable diligence, have been discovered sooner and that the evidence was of such a character that it probably would have altered the judgement about to be given. The case of QitFerete Titane Inc. v. Upper Lake Shipping Ltd. and Hopkins Steelworks Ltd. (1991), 3 L.R. (3d) 165, affirmed the former courts decision that it is within a trial judge’s discretion to determine whether fresh evidence ought to be admitted on essentially the same terms stated earlier.

In the case of Nele v. Royal Bank of Canada [1994] O.J. No. 1425 (Ontario Court of Justice) a motion was made to reopen a summary judgement motion on the basis that entirely new facts which expanded the earlier investigation had been discovered by new counsel. Since there was no doubt that the plaintiff had made out some trial issues which could not be disposed of in a summary judgment, the motion was allowed.

It is clear from these decisions that it is within the trier of fact’s discretion to decide whether to reopen a hearing. In this case, counsel for the Ministry is not attempting to adduce new evidence but rather make further submissions with respect to the applicable jurisprudence. She did so in what I believe is the appropriate fashion, that is by requesting a hearing to argue the issue of reopening the hearing. She requested that the Board allow the Ministry an opportunity to make further submissions and that issue was properly argued before me.

Several considerations come into play in determining this question. The first issue is, in my view, the importance of making decisions in full knowledge of the current state of the law. What the Employer is attempting to introduce at this stage of the hearing is a Court of Appeal decision which definitively interprets a section of the Ontario Labour Relations Act that applies not only in this case but will apply in other cases where a similar fact situation arises. It would not be in the best sound labour relations interests between these parties to make decisions without being aware of the current state of the law and, in particular, Court of Appeal decisions that are binding on the Vice-Chair hearing the matter.

Even further are the implications for the Grievance Settlement Board. It has been accepted for numerous years that a decision of one panel of the GSB is binding on other panels in simialr fact situations. Any decision made without full argument and full knowledge of the law could have the effect of binding further Boards to a decision that was patently wrong. That again is simply not in the interests of the parties.

This case does not involve a matter of presenting new evidence that ought to have been discovered during the preparations for the initial case. It does however involve providing the Board with the correct legal basis for its decision. There is no question that these submissions could have and should have been presented at the time of the initial hearing. Nevertheless, I have decided to allow the admission of these additional submissions and now consider the submissions on the merits of the preliminary motion.

With respect to the issue of timeliness, it is true that an arbitrator has discretion to relieve against time limits, even mandatory time limits, where the criteria set out in Becker’s Milk and/or the Labour Relations Act have been satisfied. However, the history of the provision at issue is significant. In 1992 when it was amended to include the arbitration process, it was an intentional addition that was to widen the arbitrator’s jurisdiction to allow the parties to get to the real issue before the Board. The subsequent amendment in 1995 was again a deliberate change to the Act to make it clear that there was to be no relief for a failure to meet the time requirements for referring a grievance to arbitration. The court decision in Leisure World confirms that. The Court could not have been clearer. It stated in paragraph 19 as follows:

“The jurisdiction to grant relief from time limitations with respect to grievances should not be interpreted to also grant relief from time limits from referral to arbitration. Section 48 (16) is clear and unambiguous. To conclude otherwise is to conclude that the deletion of the words “or arbitration” from the 1995 had no effect whatsoever. The words in the statute must be given their clear meaning. The Board had no jurisdiction to extend the time limit for referral to arbitration”

The Union has suggested that where the language in the Collective Agreement melds the two procedures so that there is no distinction or separation between the grievance and arbitration process, a Board of Arbitration should apply section 48(16) and exercise its discretion. That question has been effectively answered in the decision of Cherry and the Minister of Finance (GSB#0626/01). In that decision Vice-Chair Gray stated as follows in paragraph 13:

… Thereafter, this grievance was not referred to arbitration by the Union for nearly fifteen months, whether that is because the grievor did not ask that it do so or because the Union did not follow through when asked, the result on this issue and in this forum is the same: according to the collective agreement the grievance is inarbitrable.

The jurisprudence on this issue is clear, unequivocal and consistent. Notwithstanding section 48(16) of the Labour Relations Act, an arbitrator does not have the jurisdiction to extend the time limits in a collective agreement for a referral of a grievance to arbitration.

For these reasons, Employer’s motion is granted and the grievance is dismissed.

Dated at Toronto this 9^th day of March, 2004.