GSB# 1996-0717, 1999-0878, 2001-1069, 2003-3321, 2004-0745

UNION# 1996-0517-0005, 1999-0517-0008, 2001-0517-0238, 2001-0517-0260, 2001-0517-0259, 2001-0517-0239, 2001-0517-0242, 2001-0517-0241, 2003-0517-0061, 2004-0517-0038

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sidhu)

Union

• and -

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

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Sean Kearney Senior Counsel Ministry of Government Services

HEARING

May 30, 2007

Decision

The Employer has moved to dismiss two of the grievances before the Board on the basis of laches. Specifically, it asserts that a grievance dated May 22, 1996 and a grievance dated June 5, 1999 should be dismissed. The Union opposes the Employer’s motion.

FACTS

The grievor, Harbir Sidhu, has a number of grievances before the Board, dating from May 22, 1996. In general, the grievor alleges discriminatory treatment and discipline as a result of his religion, specifically his religious practices as a Sikh.

The first date of hearing was on January 19, 2004, which turned into a mediation. At that mediation, counsel for the Employer, Mr. Sean Kearney, requested particulars of the grievor’s allegations. This was followed by correspondence between counsel. When no particulars or documents were provided, three scheduled hearing dates were lost.

On July 28, 2004, the Board issued an Order which, among other things, ordered the Union to provide, by August 13, 2004, “the particulars and documents requested in Mr. Kearney’s letter of June 9, 2004.” The Employer was also to provide particulars in relation to the matters for which it bore the onus. The next hearing date was scheduled for September 13, 2004.

The Employer subsequently provided the Union with its particulars and documents, adding to particulars and documents already provided. On August, 13, 2004, the Union responded to the Employer’s request for particulars.

Much of what followed has been outlined in a prior decision of the Board dated October 19, 2006, which addressed the Employer’s motion to dismiss on the basis of insufficiency of the particulars. It need not be repeated here.

The only testimonial evidence presented in conjunction with the Employer’s current motion was the testimony of Mr. Bob Ewing, Deputy Superintendent of Security at Toronto West Detention Centre. The Union provided no viva voce evidence.

Mr. Ewing has been Deputy Superintendent of Security since 1986. He has been the “lead person” for the Ministry in regard to the grievances of Mr. Sidhu since they came to the GSB in January 2004. He stated that he was not involved with the grievances prior to that time. He had no knowledge of whether a Step 1 meeting was held, nor any of the steps of the grievance procedure prior to the grievances proceeding to arbitration. His responsibility, in late 2003, was to check the institution for records and documents pertaining to the grievances for Employer counsel.

Mr. Ewing explained that when a grievance is filed, a grievance file is created into which the Employer places relevant documents. It was established that there were three documents in the 1996 grievance file: (1) a May 1, 1996 Occurrence Report by Operational Manager Kitzul; (2) a copy of the log from April 30, 1996; and (3) a June 19, 1996 letter of counsel to Mr. Sidhu concerning his failure to file an Occurrence Report as directed on April 30th. According to Mr. Ewing, this was based on the Employer’s “guess” about what the grievance concerned. These documents were forwarded by Mr. Kearney to Mr. Roland in June of 2004. In terms of the June 5, 1999 grievance, there were no documents in the grievance file other than the grievance itself.

The two grievances are quite broadly worded. The May 22, 1996 grievance states:

I grieve that Mr. Kitzul (OM 16, Supervisor) has harassed me on a continuous basis, in violation of the collective agreement, not limited to Articles A.1.1 and A.1.2.” The remedy requested states: “The harassment must stop immediately, once and for all, monetary compensation and time off for mental anguish.”

The June 5, 1999 grievance states:

I grieve that the Employer has engaged in discriminatory treatment of me, contrary to Article 3 of the collective agreement, but not limited to that article.” The remedy seeks “full redress.”

No testimonial evidence was presented at the hearing regarding the various steps in the grievance procedure about either grievance. As noted, Mr. Ewing was not sure whether Step 1 meetings were held, and the Union presented no testimonial evidence in this regard. As will be more fully set forth below, however, there were a number of documents attached to the particulars submitted by the Union in August 2004 which are relevant to the June 1999 grievance.

Mr. Ewing testified initially that in 2001, the institution was facing a serious shortage of space for its documentation. The documents were also quite disorganized. Accordingly, the Employer re-organized its documents, by calendar year, and based on its document retention policy, destroyed documents they were no longer required to keep. There is no evidence that this action was connected in any way to the grievances involved in this case, or any other grievances. The policy introduced at the hearing showed a number of facsimile transmissions, and an illegible stamp of “received” by Toronto West Detention Centre. It appears that the document was faxed to the institution on September 24, 2003, and in light of that date, Mr. Ewing acknowledged that it may well have been in 2003 that the document reorganization took place. Mr. Ewing further stated that he tried, but was unable, to obtain an original copy of this policy. He testified that it was this policy that formed the basis of the Employer’s decision regarding document retention.

Under the retention policy, log books are to be kept for 2 calendar or fiscal years; duty rosters are to be “destroyed when superseded”; Occurrence Reports are to be kept for “5 years- subject to selection after transfer to Archives” and Occurrence Files for “3 years – archival subject to selection after transfer to Archives.” The Ministry’s archives are outside of the institution, and Mr. Ewing was not aware that any documents relevant to this matter had been sent there. He testified that if a document was known to be relevant to a grievance, a copy of it would be placed in the grievance file.

After the Employer received the Union’s particulars in August 2004, Mr. Ewing testified that he was again asked by counsel to perform a document search. He did so, but found no relevant documents, such as duty rosters or assignment sheets, from the time period of the grievances.

In its particulars concerning the June 5, 1999 grievance, the Union asserts that “[t]he discriminatory treatment visited upon the grievor is well known to the Employer and includes but is not limited to inconsistent orders respecting where the grievor may be posted given his facial hair.” It states that “during a certain period the grievor was restricted to the front desk and the visit desk. Another time he was allowed to work in all areas. Another time the grievor was restricted to ‘general duties’ only” and “95% of the time the grievor was assigned to the so-called ‘Fresh Air’ program” and lost overtime opportunities. The particulars refer to a chronology supplied by the grievor, but the only entry dealing with assignments during this time period is June 2, 1999 which states:

Mr. Bell [Deputy Superintendent] put out a memo to the managers, outlining that CO’s Singh and Sidhu were to be posted to positions least likely to encounter the MSA equipment. He gave examples of posts as being lobby officer, recreation visit control and outside escorts. Managers interpreted this memo differently, and the job postings of the officers varied from day to day.

The Union’s particulars also state that “[t]his all involves the fact that the Employer was advised by the grievor that the grievor was an actively practicing Sikh and that his creed involved the growing of facial hair and the wearing of a turban.” It asserts that the “Employer’s discriminatory response to this was grieved and the Employer gained knowledge of the grievor’s position in this regard through extensive disclosure/complaints/discussions and suspensions (7 days) during the grievance process.” It enclosed a chronology of events, and some other documentation.

The chronology, and attached documentation, indicates that in late April 1999, Mr. Sidhu informed the Employer about his intention to grow a beard and wear a turban in observance of his Sikh religion. On April 30, 1999, the Employer then sought additional information, including a letter from a religious leader indicating the requirement to grow a full beard and wear a turban, after which the Employer agreed to “discuss an accommodation required for employment.” Mr. Sidhu responded on May 17, 1999, stating that “one of the aspects of Sikhism is unshorn hair” and he had “made a personal decision to grown by beard and hair…” He declined to provide a letter from his religious leader. A meeting was held on May 19, 1999 concerning that decision, the substance of which is outlined in a letter by Mr. Sidhu to Deputy Superintendent Bell on the same date. Mr. Sidhu’s failure to provide the requested letter led the Employer to order the grievor to attend work shaved on his next shift, or provide the requested documentation. He did not do so, and was suspended. Subsequently, when there was further noncompliance, the suspension was continued. A meeting was scheduled for May 25, 1999 to discuss this matter. Notes of that meeting were provided by the Union. A subsequent meeting took place on June 1, 1999, notes of which were provided by the Union. The following day, June 2, 1999, the grievor’s request for accommodation was allowed and the grievor was advised that “managers have been directed to assign you to a Correctional Officer’s post least likely to interfere with operations. This is in response to your inability to wear MSA and gas mask equipment.” Apparently, the grievor’s earlier suspension was rescinded.

Further, one of the documents provided by the Union is a July 13, 1999 letter from Mr. Sidhu and Mr. Singh to management complaining about their assignments since June 2, 1999. There is also a letter dated July 24, 1999, from Mr. Sidhu to management, about his assignment on that date. Another memo from Mr. Sidhu was sent on August 2, 1999, to which the Employer responded on August 13, 1999. Further correspondence on this was issued by the Employer on August 4, 1999. In addition, there was a grievance meeting pertaining to the June 5, 1999 grievance on July 26, 1999, and in the Employer’s response dated August 9, 1999, Superintendent Conry indicates that “[y]ou and your union representative presented to me examples of how you felt you were discriminated against and presented me with documentation on your religion and practices.” The letter indicates that a copy of this letter was to be placed in the “Grievance File.”

In terms of the 1996 grievance, the particulars allege that on May 22, 1996, “the grievor was sent at or about 2:32 a.m. to his vehicle to retrieve his name tag” whereas the usual procedure when a name tag was lost, at the time, was “simply to submit a memo request the replacement of a name tag.” It asserts that “[p]rior to this OM16 Kitzul had been harassing the grievor on a continual basis.” The only prior incident alleged, however, is a September 24, 1994 incident in which Mr. Kitzul allegedly stated: “Have a good shift ladies and gentlemen and minorities”, when Mr. Sidhu was the only minority present. Exactly when the Employer was provided with this document in connection with this grievance is not clear, but it was after August 2004.

The Union, in its particulars, also refers to three incidents that allegedly took place shortly after the grievance was filed. It asserts that on June 4, 1996, June 10, 1996 and June 29, 1996 other Correctional Officers (who are identified in the particulars) did not have on their name tags and no action was taken against them. It also refers to a letter of counsel dated June 19, 1996 which, the Union claims, is the “culminating example of the continuing harassment and discrimination which is complained of in the grievance.” The June 1996 letter of counsel involves Mr. Sidhu’s refusal to prepare an Occurrence Report about his name tag when ordered to do so by Mr. Kitzul on April 30, 1996.

It was not until the August 2004 particulars that these other individuals were identified as examples of disparate treatment. There is no indication what shifts these Correctional Officers were on when they allegedly did not wear their name tags or which supervisors were involved. There is no evidence that the Employer was made aware of this, prior to August 2004, in order to investigate whether this occurred or the circumstances surrounding these allegations. There is no ability for the Employer to verify who was involved for management because the relevant logs have been destroyed. It further seems highly unlikely that the supervisors involved, if they are still working for the Ministry, would remember these events from 1996 when they were not put on notice it would be an issue.

Mr. Kitzul was not called to testify about his recollection concerning the events in 1994 or 1996. Mr. Ewing did contact him about whether he had any documents from the period, and, according to Mr. Ewing he did not have any.

Position of the Parties

For the Employer

The Employer asserts that because the May 22, 1996 and June 5, 1999 grievances were so vague, it was not until particulars were ordered by the Board and the Union finally complied that the Employer learned the specifics of the two grievances. The specifics, it asserts, were not provided until August 13, 2004, five years after the 1999 grievance and 8 years after the 1996 grievance. By that time documents, the Employer contends that the documents which would have been relevant to the grievances, particularly the 1999 grievance, had been destroyed in the normal course of the Ministry’s business. As a result, the Employer contends that its ability to defend itself against the grievor’s allegations has been irreparably damaged and it would be unfair to proceed. The Employer contends that under these circumstances the equitable doctrine of laches requires the Board to dismiss these grievances.

Citing Re Newfoundland and Labrador(Treasury Board) and N.A.P.E. (St. Croix)(2005), 2005 CanLII 94086 (NL LA), 138 L.A.C.(4th) 70 (Scott), the Employer argues that the Board must consider whether there has been a reasonable explanation by the Union for the delay and its effects in terms of prejudice on the Employer. In this case, it argues that the Union has provided no explanation for the delay in failing to advise the Employer until August 2004 regarding the specifics of the grievance which has prejudiced the Employer’s ability to defend its actions. It asserts that documents needed to verify the grievor’s daily assignments in 1999 have been destroyed and that without those documents it cannot test or refute the grievor’s claims. In terms of the 1996 grievance, it asserts that memories fade and that to ask a witness to recall minor events that took place in 1996 about which they had no notice would be unfair and prejudicial.

The Employer further asserts that all of the requirements for laches are present here. The Employer has “clean hands” – it did nothing to induce the Union to sleep on its rights, and it has been prejudiced by the Union’s delay. It notes that in the Newfoundland case, the Union had filed a timely grievance but then delayed processing it to arbitration for seven years, and the Board there dismissed the grievance on the basis of laches. The Employer asserts that the same result should apply here.

In further support the Employer cites to Kroeger and Ministry of the Solicitor General and Correctional Services (1999), P/0060/98 (Willes) and OPSEU (Brent Alexander) and Ministry of Transportation (1999), GSB No. 2231/97 (Gray) for the principles involved when a case is delayed. Although these cases dealt with delay in the filing of a grievance, the Employer asserts that the same principles are applicable to the delay in processing the grievance and in providing particulars which occurred here.

Finally, the Employer relies on Article 22.14.5 of the parties’ collective agreement which required that “at the earliest stage of the grievance procedure, either party is entitled to receive, upon request, full disclosure.” In this case, the Employer asserts that it did not receive “full disclosure”, despite repeated requests, until this Board ordered it to be done. By that time, however, the Employer’s ability to defend its actions was significantly prejudiced.

The Union

The Union asserts that the requirements for laches have not been met. It questions the Employer’s own delay in bringing this motion, since it has had the particulars since August 2004. It points out that the Employer raised other preliminary motions, but only when those did not succeed, was this issue raised. The Union asserts that this motion could have, and should have, been raised much earlier and that the Employer’s delay undermines its position.

The Union further asserts that there has been no demonstration of actual prejudice since Mr. Kitzul has not testified that he cannot remember the events in 1996. Nor did it have the Deputy Superintendents involved at the time testify about their recollections. In the Newfoundland case, cited by the Employer, there was clear evidence that a key witness was unable to recall the events in question, evidence which the Union asserts is lacking here.

The Union further asserts that the Employer has not shown that the documents were destroyed before the provision of particulars since Mr. Ewing could not recall exactly when the documents were destroyed. Given this lack of clarity, it asserts that it is equally likely that the documents were destroyed after August 2004 than before. The Union also questions the validity of the document retention policy. It asserts that the Employer has established no causal connection between the delay and actual prejudice.

The Union argues that the cases cited by the Employer which involve a delay in the filing of a grievance are distinguishable because, in this case, the grievances were timely filed, putting the Employer on notice of the grievances. In support of its position, the Union cites to Re Greater Niagara General Hospital and Ontario Nurses’ Association (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3rd ) 1 (Schiff); Re Workers Compensation Board of British Columbia and workers Compensation Board Employees Union (Pettigrew)(1990), 1990 CanLII 12904 (BC LA), 15 L.A.C. (4th) 87 (MacIntyre).

Decision

1. The June 5, 1999 Grievance.

The two basic facts that must be established before a Board may refuse to give effect to the legal rights of a party under a collective agreement, under the doctrine of laches, are (1) unreasonable delay and (2) prejudice to the other party. As set forth in Brown and Beatty, Canadian Labour Arbitration:

Barring a grievance from arbitration on the merits for [undue delay], however is not a matter which goes to the jurisdiction of the arbitrator. Rather, declining to deal with a dispute on the basis of undue delay is akin to the equitable doctrine of laches as applied in civil courts, and the decision in each case is a matter for the arbitrator to make in his discretion after considering the effect of, and any explanation for, the delay.

The grievance was filed on June 5, 1999 and alleges “discriminatory treatment.” The grievance did not reach the Board until January 19, 2004, some four and half years later. No explanation has been provided by the Union for this delay.

The Employer’s motion, however, is not based on an assertion that the grievance had been abandoned by the Union because of the passage of so much time. Indeed, one would expect such a motion to be made on the first day of hearing. Rather, it is based on the doctrine of laches. It asserts that it did not have notice of the particulars of the grievor’s claims in regard to this grievance until August of 2004, by which time relevant documents had been destroyed.

The evidence is clear that some relevant documents may have been destroyed by the Employer in late 2003, but under the facts of this case, I cannot agree that the Employer was not on notice of the grievor’s claims regarding his assignments, based on his facial hair, before those documents were destroyed.

The Union, with its submission of particulars in August 2004, provided documents which should have been in the Employer’s possession and knowledge long before that date. Those documents include the history of Mr. Sidhu’s request for accommodation and the Employer’s initial response to it, followed by its agreement to accommodate Mr. Sidhu. Those documents outline the Employer’s position regarding assignments due to Mr. Sidhu’s inability to wear an MSA mask. It also includes a July 13, 1999 letter from Mr. Sidhu complaining of his assignments since the June 2, 1999 agreement to accommodate. Two other letters in July 1999 from Mr. Sidhu to management involve assignments and on August 13, 1999, there was a written response from management. There is also an August 4, 1999 memo from the Employer regarding the grievor’s accommodation which deals with assignments. Finally, there were documents pertaining to the steps in the grievance procedure, indicating that the grievor had presented “examples of how you felt you were discriminated against…” On some of the documents there are “cc’s” to the “grievance file” or “personnel” file. Why these documents were not in the grievance file is unclear, but many are Employer documents and should have been in the Employer’s possession since 1999.

Consequently, although the grievance, itself, is unclear by what is meant by the words “discriminatory treatment”, there were meetings about accommodation and memos outlining the grievor’s complaints about his assignments under the Employer’s accommodation around the time of the grievance. The evidence, therefore, does not establish that the Employer was not advised of the alleged “discriminatory treatment” until August 2004. The grievor had complained about his assignments in regard to the Employer’s accommodation in July and August of 1999.

Unfortunately, it appears that the documents which the Employer might have relied upon to defend against the grievor’s claim that he was improperly assigned to the “Fresh Air” program 95% of the time, or assigned inconsistently, have been destroyed. Exactly how this will impact the hearing will be dealt with then. It may mean that the Employer will be unable to refute that aspect of the grievor’s claim. But the substance of the claim, in my view, does not lie solely in the assignments that were made to Mr. Sidhu. It goes to the Employer’s justification for those assignments, based on Mr. Sidhu’s facial hair and resulting inability to wear the MSA equipment, and that issue can still be litigated.

For these reasons, I conclude that although there has been an unreasonable delay in processing this grievance, there was notice of the claims before the relevant documents had been destroyed. As set out in Re Greater Niagara General Hospital and ONA (1981), 1 L.A.C.(3d) 1 (Schiff), a case cited by the Union, supra at p. 3:

When a grievance is launched out of time, the employer will not learn what the grievor alleges nor have an opportunity to prepare argument or marshall evidence until after the time limit has expired. But, when the defect in time comes later – particularly after steps of the pre-arbitration procedure have been completed – the employer knows precisely what the union alleges and will have had full opportunity to prepare its replying arguments and gather its evidence. …

Here, the grievance was timely launched and the Employer was on notice concerning what the grievor alleged. It had the opportunity to marshal evidence. Consequently, under the facts here, the Employer’s destruction of the documents in 2003 does not justify dismissal of the grievance on the basis of prejudice to the Employer.

Accordingly, I cannot conclude that the grievance should be dismissed on the basis of unreasonable delay and prejudice to the Employer. I also conclude, based upon my review of the record, that I made a mistake in my earlier Award dated October 19, 2006. In that Award, I limited the grievance to “the three-month period preceding the grievance.” It appears that the time period should begin to run from the date that the Employer agreed to Mr. Sidhu’s accommodation request, June 2, 1999, since that is when the assignments in dispute started.

2. The May 22, 1996 Grievance.

Whether the 1996 grievance should be dismissed on the same basis is, somewhat surprisingly, an even more difficult question than the 1999 grievance. Although the delay is even more extreme, and equally unexplained, the issue is difficult because the evidence concerning prejudice is not clear.

The wording of the 1996 grievance is extremely vague. It alleges that Mr. Kitzul “harassed me on a continuous basis” but provides no specifics about that harassment. Unlike with the 1999 grievance, however, there is no evidence regarding the steps of the grievance procedure which might have clarified for the Employer the grievor’s specific claims. There is nothing in the grievor’s chronology which pertains to 1996 and there are no documents from that time period. Unlike the 1999 grievance, there is no evidence that the Employer was ever informed, prior to August 2004, eight years after the events in question, about the specifics of the claim.

It is true that the Employer had three documents in the grievance file, based on its guess about what the grievance was about. It also may be that Mr. Kitzul, with the aid of the documents in the grievance file – the April 30, 1996 log, his May 1, 1996 Occurrence Report and the June 19, 1996 letter of counsel, may recall the specific incident concerning the grievor’s name tag. It is equally possible, however, that he may not remember. Common sense and the case law are clear that memories fade over time, and this creates a subtle prejudicial affect.

Re OPSEU (Alexander) and Ministry of Transportation, supra, cited by the Employer, involved a motion to extend time limits under Section 48(16) of the Ontario Labour Relations Act. In that case, on February 24, 1997, the grievor filed two grievances with respect to events, a competition, that took place in July of 1992. The Board determined that this was not an appropriate case to extend time limits. The Union had argued, however, that the delay should be of no consequence in the exercise of the arbitrator’s discretion to extend “if the Employer cannot demonstrate that it suffered identifiable prejudice as a result of the delay.” (Supra at p. 11). The witnesses were available – one still worked for the Ministry and one did not, but was otherwise available, and the competition file still existed.

The Board, citing the Vice-Chair’s earlier decision in OBLEU(Gamble) and Liquor Control Board of Ontario (1998), GSB No. 1635/96 (Gray), rejected that contention. In Gamble, supra, there also was “no identifiable element of specific prejudice resulting from the delay: no demonstrably needed witness who has died or otherwise become unavailable in the meantime, no arguably relevant document that has been destroyed or lost.” (Par. 25). Nevertheless, the Board reasoned that “[t]he prejudice caused by delay may also be more subtle and, by its nature, difficult to demonstrate.” It continued, at par. 26:

The memories of witnesses who are still available will nevertheless have faded, particularly if there has been no notice they may have to testify about those memories. As a result, their testimony may be or may seem less reliable, and thence less persuasive, than it would have if there had been timely notice of the dispute. Those now concerned with the dispute may not be able to determine what testimony or documents would have been discovered and preserved earlier, had there been timely notice of the dispute. They may not know what statements would have been given at the time by those witnesses whom they can now identify, nor what might have been found in documents known to have existed then that have since been destroyed. Indeed, they may not know of or discover helpful witnesses or relevant documents whose existence would have been discovered had timely assertion of the dispute triggered an earlier search for them. It is the nature of these forms of prejudice that their precise effects and perhaps even their existence in a particular case cannot be demonstrated.

In my view, this analysis is highly relevant here. Even if it could be assumed that Mr. Kitzul could reasonably testify to events that took place in 1996, it is likely that his testimony may be less reliable and, hence, less persuasive, than it would have been if there had not been such a long delay in the processing of this matter. This is even more true for the comment about “minorities” Mr. Kitzul allegedly made in 1994, since there was no indication that this was in dispute in connection with this grievance.

Even more significantly, there were new assertions raised in the particulars, for the first time, concerning other Correctional Officers who were allegedly treated differently for not wearing their name tag. This left the Employer with the task of trying to ascertain in the Fall of 2004, whether the named officers, on the three dates listed in 1996, had not worn their name tags and what, if any action, the Employer took about it. Instead of being able to investigate this in 1996, or sometime reasonably thereafter, the Employer could not investigate it until August 2004. This, in my view, prejudiced the Employer’s ability to defend itself against the grievor’s allegations. As stated in Gamble, supra, the Employer “may not know what statements would have been given at the time by those witnesses whom they can now identify, nor what might have been found in documents known to have existed then that have since been destroyed.” Unfortunately, any relevant documents that might have assisted in that investigation – the daily logs and assignments, or Occurrence Reports – needed to identify shifts and supervisors involved, or what may have occurred, have been destroyed. Likewise, “they may not now know of or discover helpful witnesses or relevant documents whose existence would have been discovered had timely assertion of the dispute triggered an earlier search for them.”

Certainly, there are delays inherent in the grievance arbitration process, particularly within the culture of the GSB. Long delays for grievances to reach the Board are not uncommon here. But even at the GSB, there are limits. At some point, prejudice may be presumed. Each case will turn on its own facts, and the key is the ability of both sides to have a fair hearing. As stated by the board of arbitration in Re International Longshoremen’s Association, Local 1654 and Shipping Federation of Canada (1967), 1967 CanLII 1015 (CA LA), 18 L.A.C. 174, 176 (Weatherill), quoted in Re Newfoundland, supra at p. 23:

It is our opinion that a board of arbitration ought not to refuse to hear the merits of a grievance except where it would clearly be improper to proceed. Certainly the grievor was entitled to a fair hearing of his case. A “fair hearing” however, must be fair to both sides. Because of the union’s delay in proceeding with this matter, a fair hearing has become impossible, since the employer has been substantially prejudiced in the presentation of its case. It is clear to us that in these circumstances the matter is not arbitrable. We would emphasize that our determination on this point is no mere “technicality”; the requirement of a fair hearing lies at the very root of the notion of justice ….

In this case, the delay was extreme – more than eight years. No explanation for the delay was provided. There is no evidence that any of the specifics of the grievor’s claim of “discriminatory treatment” was conveyed to the Employer prior to August 13, 2004. The Employer’s ability to investigate and defend against the grievor’s claims from 1996 has been irreparably prejudiced.

Finally, the Union is correct that the Employer should have raised this motion earlier, at least in conjunction with its other preliminary issues. However, the Employer’s failure to do so does not render the motion improper. The Employer provided notice of this motion some time ago, and it was not presented on the eve of the hearing on the merits.

Accordingly, for the reasons set out above, I conclude that there has been an unreasonable delay in processing and providing the particulars in this case, which has prejudiced the Employer. The Employer’s motion to dismiss the 1996 grievance is granted.

Conclusion:

1. The Employer’s motion to dismiss the 1996 grievance is granted.

2. The Employer’s motion to dismiss the 1999 grievance is denied. Further, the October 19, 2006 Decision of the Board is amended to state that “the claim is limited to the three-month period following the grievance.”

Dated at Toronto, this 7th day of June, 2007.