GSB# 2000-1200, 2001-0589, 2001-1442, 2003-0153, 2003-0154, 2003-0155, 2003-0156

UNION# 2000-0586-0003, 2000-0999-0022, 2001-0455-0008, 2001-0455-0005, 2001-0455-0004, 2001-0455-0006, 2001-0455-0002, 2001-0455-0003, 2001-0455-0010, 2003-0437-0011, 2003-0437-0012, 2003-0437-0013, 2003-0437-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ferraro et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

George Parris Counsel Ministry of Government Services

HEARING

August 28, September 28, 2001; January 23 & 24, September 27, 2002; October 13, 2006.

Decision

There are several grievances before me, among then a group grievance and a Union grievance, arising from work assignments in the Ontario Disability Support Program (ODSP). The group grievance alleges that the Employer has violated the collective agreement by assigning interviewing duties to the Customer Service Representatives (CSR’s) in the Toronto office, contrary to their job specifications. This work, it was said, was work that was exclusively designated as the work of an Income Support Specialist (ISS). The grievance also alleged that the assignment to CSR’s of CVP clerical duties that were clearly an Income Specialists Clerk functions as set out in their job specifications was improper. The Union grievance alleged that the Employer was violating the collective agreement by transferring many Income Support Specialist functions to other classifications within the Ministry, by transferring Income Support Clerk duties to CSR’s and by imposing rigid scheduling upon Income Support Specialists not required of other employees. At a later stage in the process the Union advised the Employer that it intended to raise Health and Safety issues regarding the assignment of this work, in particular the stress and tension that had been created in the workplace. They were seeking a declaration that the Employer had violated the collective agreement and a cease and desist order from the Board to prevent any further violations. In the alternative, it was submitted, if this Board should find against the Union’s primary argument, the grievors should be paid at the higher wage rate of an ISS for the time they were assigned to their duties.

These grievances were filed in the years 2000 through 2003. Hearings commenced on August 28 of 2001 and continued into September 28, 2001, January 23, 24, and September 27, 2002. During these days we heard evidence about the work done by one grievor, Mike Ferraro, specific to the Toronto office and from other CSR’s working in offices outside Toronto. The hearings were adjourned on consent in March of 2003 while efforts were being made to address these issues in another forum and, ultimately, in May of 2004, Minutes of Settlement were signed that stated, in part, as follows:

Resolution of grievances

a) The parties agree that the Union grievance GSB # 2001-0588 will be withdrawn and the Union will notify the GSB.

b) The Union will review the grievances listed in Schedules B and C and will recommend to the grievors that the grievances be held in abeyance pending the parties’ discussion of the new framework for service delivery.

c) In the event the grievances listed in Schedule B and C are held in abeyance and are not resolved at the end of the discussion of the new framework, the Union may ask the Grievance Settlement Board to reconvene these grievances.

Subsequent to that Memorandum of Agreement, another settlement document was executed by the Joint System Sub-Committee (JSSC) concerning certain classification grievances that had been filed in the ODSP. That settlement, dated December 10, 2004, provided that all OAD8’s in the Customer Service Representative positions would be reclassified to an OAD9 position effective September 1, 2003 and all OAD6’s would, effective that same date, be reclassified as OAD8’s. The parties, however, had been unable to agree compensation for each grievor and the appropriate classifications for the OAD5 Income Support Clerks, the Welfare Field Worker 2’s in the positions of Income Support Specialists, the Case Presenting Officers and the Eligibility Review Officers.

By letter dated September 14, 2004 the Union advised the Employer that the grievors intended to proceed with their grievances and the hearing was reconvened on May 30, 2005. At that hearing the Employer advised the Union it intended to argue that the issues raised in the grievances had been addressed through these two Minutes of Settlement and the grievances were therefore moot. It provided its reasons for its position in a letter dated June 22, 2006 as follows:

The Employer confirms its position as follows:

1. The Client Service Representatives (CSRs) have been reclassified to a higher classification of O 90 AD.

2. The CSRs have a new job specification confirming the inclusion of interviewing as part of their overall job duties.

3. The higher classification and resultant new job specification is mutually agreed upon by both parties at the Joint System Sub-Committee (JSSC) forum.

4. The aforementioned Agreement was signed pursuant to a grievance filed by the Union at JSSC alleging that the inclusion of additional interviewing duties for the CSRs and resultant risks required a higher classification and higher pay scale.

5. The Agreement granted CSRs a higher classification in recognition of their additional interviewing duties.

6. The Agreement resolved the issue with respect to whether the CSRs should be doing the interviews or not.

7. The Agreement and resulting reclassification acknowledges and confirms the Union’s agreement that CSRs are doing interviews as part of their overall duties.

8. The Agreement and resultant reclassification negates and nullifies the following Union’s position put forward at litigation to date:

(a) CSRs should not be doing interviews and that the Board should order an immediate cease and desist.

(b) Interviewing is contrary to the job duties highlighted in the job specs.

(c) Income Support duties should not be transferred to CSRs.

9. The Agreement therefore nullifies grievances dated July 17, 2000 and August 1, 2001.

10. The Agreement further precludes the Union from using two separate forums to litigate the same issue. In particular, the Union should be precluded from settling the issue in one forum, at the JSSC, and pursing the issue in another forum.

11. In addition, the Employer confirms that the Union has abandoned its complaint with respect to the rigid scheduling of the Income Support Clerks. Accordingly, the only issue between the parties remains the issue as to whether the CSRs should be doing interviewing r not. It is the Employer’s position that the Agreement and the resultant higher classification resolves the said issue and hence resolves any dispute between the parties.

The letter concluded with notice that the Employer intended to bring a motion at the next day of hearing to dismiss the grievances on the grounds that the issue was moot and therefore the remedy was moot. It also intended to argue, in the alternative, issue estoppel.

The Union, by letter dated July 12, 2005, advised the Employer as follows:

The claim/grievance remains alive regarding a remedial claim for the period 30 days prior to the grievance to the date of the Minutes of Settlement retroactively- September 1, 2003.

The Union also confirmed that the grievance regarding rigid scheduling and CSRs doing reception had been withdrawn.

The parties met again on October 13, 2006. George Parris, counsel for the Employer, relied on a decision of Vice-Chair Abramsky in a Union grievance (GSB # 2024/97) in which an issue arose from the Union’s claim that the Ontario Realty Corporation had failed to comply with its “reasonable efforts” obligations with respect to its divestment of the Technical Consulting Services and Facility Management Services with respect to its Request for Qualifications (RFQ) process. The requested remedy was compliance with the collective agreement, cease and desist and any other remedy the Board deemed appropriate. After the hearing on the Request for Qualifications process had begun but before a decision had been rendered, the Employer decided to cancel the RFQ process and proceed directly to the Request for Proposals (RFP) phase of the divestment. The Employer took the position that the issue before the Board was now moot. The factual underpinning of the grievance had been eliminated in and, it was said, it would be a waste of the parties’ and the GSB’s resources to continue. It also took the position that with the cancellation of the RFQ there was no longer a remedial purpose to the proceedings and the only affect the decision would have in the circumstances would be to score debating points, which would only heighten the parties’ tensions over the issues and would be poor labour relations practice.

The Union took the position that there had been no settlement of the grievance but rather a unilateral decision by the Employer to cancel the RFQ. The issue of whether the employer's reasonable efforts obligation applied to the RFQ stage and whether it had been met had not been answered and the Union was entitled to have that issue addressed. The Union also took the position that there was a potential on-going consequence, namely, whether the employer should have ensured during the RFQ process that reasonable efforts friendly firms were invited to bid.

In considering the question of mootness, the Board referred to the case of Borowski v. Canada (Attorney General) 1989 CanLII 123 (SCC), 57 D.L.R (4th) 231. Before the case could be heard by the Supreme Court of Canada, a decision was rendered in another court which struck down the challenged abortion provisions. In considering whether or “the serious issue existed as to whether the appeal was moot” Mr. Justice Sopinka, at page 239, spoke for the court in discussing the doctrine of mootness as follows:

The doctrine of mootness is an aspect of the general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. The essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.

The court went on to say that the first step is to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. If the answer is yes, then it must be determined whether the tribunal should exercise its discretion to hear the case in ay event. Examples of decisions where courts have dismissed proceedings on the grounds of mootness include the repeal of a municipal bylaw and the dispute of the validity of an injunction prohibiting certain strike action after the strike had been settled. In another case, a Board of Arbitration declined to hear a grievance alleging that a school board had violated a memorandum of settlement by failing to hire a certain number of teachers (Re Welland County Roman Catholic Separate School Board and Ontario Catholic Teachers’ Association 1992 CanLII 14552 (ON LA), 30 L.A.C. (4th) 353 (Brunner). By the time the hearing was held the school year in question had ended and the union was only seeking a declaratory order. No damages had been alleged as a result of the breach and I was unlikely the matter would recur. The Board decided that a declaration would have no practical effect other than to score debating points for one side or the other. The Board was also concerned that a declaration might inhibit and detrimentally affect the negotiation of a renewal of the collective agreement.

With respect to the case before her, Vice-Chair Abramsky noted that the original situation had changed such that the issue of the violation of the collective agreement had been effectively extinguished. Without the continuing existence of the RFQ, upon which the contractual issues in the case had been based, the resolution of those issues was purely academic and could have no practical effect on the parties. The Board however cautioned that there could be situations in when despite a substantial change in circumstances, the grievor or Union might have a continuing interest in the determination of the grievance and when a declaration would serve the interests of the parties.

With respect to the submission of the Union that the Board exercise its discretion to hear the case, Ms. Abramsky found no collateral consequences that would justify such a declaration.

That rationale of that decision was applied by the same Vice-Chair with a different result in the case of OPSEU v. Ministry of Solicitor General and Correctional Services (1997) GSB # 1925/96. In that case the Union had challenged certain aspects of the Ministry’s Attendance Enhancement Program but, at the commencement of the hearing, the Employer advised the Board that the program that had been grieved had been replaced with a new corporate wide attendance policy. It took the position that the grievance was moot in the circumstances. Ms. Abramsky found that, while many aspects of the new plan differed from the first program, provision had been made to transfer employees who had been subject to the first attendance awareness program into the new attendance awareness program at the equivalent level. Her first inclination had been to compare the discontinuation of the old program to legislation that had been repealed or found to be unconstitutional, which usually resulted in a determination that a declaration would serve no useful purpose. However, in the case before he, the fact that employees were transferred into the new program caused her some concern. If employees who had been enrolled in the previous plan had been given a fresh start under the new plan, she would have been prepared to declare the grievance moot. However, in the circumstances, Ministry employees continued to be affected by determinations made under the previous plan. That continuing effect distinguished the cases referred to above from the case before her. She found that the basis of the grievance had not disappeared and a determination on the merits would have impact on the grievors.

With respect to the Union’s assertion tat live issue remains over the appropriate remedy, the Employer submitted that this Board should not allow the Union to expand the original grievances under the guise of remedy. It relied on the decision of a Board of Arbitration in Re Fanshawe College and OPSEU (2002), 2002 CanLII 79073 (ON LA), 113 L.A.C. (4th) 328 (Burkett) in which the Board, at page 5, stated as follows:

… the acid test is whether an issue not encompassed within the grievance that requires the calling of evidence and the making of legal submissions has been raised. Without restricting the authority of an arbitrator to fashion an appropriate remedy at the conclusion of the case, which may or may not differ from the remedy sought, it is the statement of grievance read in conjunction with the remedy sought that defines the essential nature of the grievance and the issues that have been raised by the grievance, thereby allowing an arbitrator to decide if the grievances been improperly expanded.

In this case, it was said, all of the issues, including the issue of remedy, have been resolved by the parties. It was not a unilateral decision of the employer but rather the mutual agreement of the parties that the terms of the settlement be formalized in Minutes of Settlement. There is no issue left for this Board to determine.

The second part of the test set out by arbitrator Abramsky is a consideration of whether the arbitrator ought to exercise his/her discretion to hear the dispute even if he facts giving rise to the initial grievance are moot. In the instant case the matter was referred to the JSSC, the forum the parties have agreed should deal with issues of classification. This Board should not interfere with that process. Additionally, it was submitted, it has been more than five years since these grievances were filed and almost 3 years since the grievors were reclassified. From a labour relations perspective it would not be in anyone's interest to continue in this forum on matters that have been resolved.

Mr. Ed Holmes, counsel for the Union, took the position that there is an issue for this Board to decide, namely the grievors’ entitlement to pay for the assignment of work in a higher rated classification. That entitlement should be effective from 30 days before the filing of the grievance to September 1, 2003. The comparison of the job descriptions before the grievance and the new job descriptions that have resulted from the reclassifications clearly show that the grievors were being asked to perform the interview duties of a higher rated classification on a regular basis.

The Union put the Employer on notice at the commencement of the hearings into this matter that it intended to seek a higher rate of pay for the job duties of a higher rated classification. That is a live issue that continues to affect the grievors. Given that it requires the reimbursement of the wages of an ISS for a period of more than three years, the impact could be significant.

In addition, one of the issues raised in the grievances was the improper assignment on a regular basis of duties of another classification. That assignment of duties undermines the pay scales negotiated by the parties. It is not an academic question for the Union but raises a real and significant question that is important to the Union.

Finally, the Union cautioned the Board not to be influenced by the delay in these proceedings. The majority of the delay was by agreement of the parties in an attempt to resolve all of the issues in a more complete and less adversarial forum. It was also in recognition of the fact that the parties have agreed that classification issues should be determined by the JSSC. The fact that it has taken this long to reconvene the Board is not an indication of a lack of interest in its outcome. As soon as was practical after the execution of the minutes of settlement, the grievors advised the GSB they intended to proceed with their claims. Any delays in the interval cannot be attributed to any one party and are simply a product of the system.

In reply, Mr. Parris agreed that no blame should be attached to any one party for the delay in having this matter addressed by the Board, but did suggest that the fact that these grievances were filed in the year 2000 could be a factor for this Board to consider in deciding whether to exercise its discretion. It was also submitted that if the original grievances had specifically raised the issue of pay for work of a higher classification, this motion would not have been necessary. But they did not and this Board should not allow the Union to expand the scope of the grievance in this manner.

REASON FOR DECISION

The issue before me is whether, given the intervening events that have transpired since these grievances were filed and since our last day of hearing, there remains a live dispute between the parties that requires an answer from this Board or whether, as the Employer alleges, the underpinnings of the grievance have been resolved and there are no on-going consequences to the parties that need be addressed.

I adopt the comments of Mr. Justice Sopinka in the Boroski case (supra) with respect to the principles to be applied in determining a question of mootness. Principles, however, must be considered in the context of the facts of the case before an adjudicator and, in this case, those facts are to be found in the documents the parties have provided to me.

First, the grievances themselves define the issues, which are clearly described as the assignment of duties set out in the job specifications of one classification to employees in another classification. Whether it is the interviewing duties of an ISS to a CSR or the clerical duties of a ISC to a CSR, the major point of disagreement between the parties was the right of the Employer to make these work assignments given the job specifications that had been developed for each position. In the grievances specific allegations that these assignments are contrary to the job specifications are clearly articulated.

Eventually Minutes of Settlement were executed that altered these job specifications to include many, if not all, of the disputed job duties and appears to have resolved the Union’s concerns about the actual duties that gave rise to these grievances. The parties agree that, for example, interviewing is now part of the duties in the job specification of a CSR. Presumably, other duties that the Union raised in these grievances must have been similarly resolved since it agrees that no issues remain regarding the actual assignment of duties subsequent to the signing of the Minutes of Settlement. That settlement also resolved the Union’s complaint about rigid scheduling rules for the ISSs.

The grievances, on their face, ask that the Employer cease assigning interviewing duties to the CSRs, cease assigning CVP clerical functions to the ICS, remove the strict scheduling rules for ISS and that the Employer assign job duties and functions in accordance with the job specifications for each classification. In its opening statement the Union included a claim for pay of the higher rated classification as an alternative remedy in the event the Board ruled against its primary grounds.

It is clear from the Minutes of Settlement that the interviewing duties are now part of the job functions in the job specifications of a CSR. The parties are also agreed that the CVP clerical functions and rigid scheduling issues had been resolved. However, the parties expressly agreed to disagree on the issue of retroactive compensation, if any, for the new classifications that were created by the settlement. That issue continues to be a live controversy between the parties.

In addition, a letter was sent in September of 2001 by Mr. David Wright to Mr. Stephen Patterson, who was, respectively, Union and Employer counsel at the time, that set out the Union’s particulars. Those particulars included the following:

3. It is an improper exercise of management’s rights for management to routinely assign the duties of a higher classification to employees in a lower classification as such an assignment undermines the pay scales negotiated as part of the collective agreement.

4. Alternatively, management cannot routinely assign the duties of a higher classification to employees in a lower classification without complying with the provisions of Article 8 and paying the lower classification employees at the pay rate of the higher classification.

The Union has not expanded the grounds of the original grievance, but clearly put the Employer on notice that it intended to pursue these two issues in addition to the specific allegations set out in the grievances. Those two distinct issues have not been resolved by the settlements the Employer asserts have rendered the grievances moot. There is a specific claim for compensation that directly affects the grievors and a policy issue concerning the Employer’s right to assign duties outside of an employee’s job specifications. The Union and the grievors have reconvened the hearings to have these issues dealt with and they are entitled to do so. These issues will have an impact on the grievors themselves and might have consequences for the Union and the Employer affecting their future relationship. These are live issues.

DECISION

For the reasons outlined above, the Employer’s motion to dismiss the grievances on the doctrine of mootness fails. The parties are to contact the GSB to schedule additional hearing dates.

Dated at Toronto this 30th day of May, 2007.