GSB#2009-1293, 2009-1750

UNION#2009-0523-0001, 2009-0635-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Vitorino et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Paul Meier Ministry of Government Services Counsel

HEARING

February 11 and February 16, 2010.

Decision

1The Employer raised a number of preliminary objections to the jurisdiction of the Board to hear the instant grievances. This Decision addresses the Employer’s preliminary motions.

FACTS

2In regard to the Employer’s preliminary motions, the parties proceeded by way of an Agreed Statement of Fact and exhibits. In relevant part, those provide as follows:

1. Grievances Before the GSB

2. There is one Group Grievance and 42 individual grievances before the GSB. The issue in the grievances relates to the cessation of student vacation/holiday pay-in-lieu (“Student PIL”) payments. The grievances are as follows:

• Ontario Place Group Grievance

• Rondeau Provincial Park Grievances (25 individual grievors)

• Wheatley Provincial Park Grievances (13 individual grievors)

• Restoule Provincial Park Grievance (one grievor)

• Ontario Travel Centre Grievances (four individual grievors)

2. Collective Bargaining Between the Parties

3. In early Spring 2008, the Union commenced its process of demand setting.

4. In late June 2008, a meeting was held by the Union where the election of OPSEU bargaining teams(s) took place.

5. Shortly thereafter, the OPSEU bargaining team was provided with the list of demands from the OPSEU Locals. The demands were silent on the student PIL issue.

6. The parties created a bargaining centre at one location. The Union arrived at the bargaining centre in mid-September 2008. The Employer arrived at the bargaining centre in October 2008.

7. The parties met daily thereafter for the purpose of bargaining a new Collective Agreement.

8. On or about November 4, 2008, the parties exchanged proposals. The matter of the Student PIL was not raised at that time. Bargaining continued daily thereafter.

9. On or about December 3 or 4, 2008, the Employer presented the Union with a letter addressed to Mr. Brian Gould, OPSEU Chief Negotiator, from David Logan, Assistant Deputy Minister, Employee Relations Division, HR Ontario, MGS. In his letter, Mr. Logan stated:

I am writing to advise you that the Employer provided students (as defined in Article 33.1) with pay-in-lieu of benefits, vacation and statutory holidays in error, and that the Employer will proceed to conform to the Collective Agreement in the future. [see attachment at Tab A].

9. Article 33.1 of the Collective Agreement, under the heading “Student Employees”,

states:

A student is an unclassified employee occupying a “student position” during his or her regular school, college or university vacation period, or in an OPS Special Youth and/or Student Employment Program during his or her regular school, college or university session or vacation period or occupying a “co-operative education student position” under a cooperative education program.

10. Article 33.3 states:

A “student position” or “co-operative education student position” is an unclassified position with terms and conditions specifically applicable to students.

11. Article 33.4 establishes the student wages during the agreement.

12. Article 33.6 states:

The following articles shall apply to student employees as defined in Article 33.1: 1 [Recognition], 2 [Management Rights], 3 [No Discrimination/Employment Equity], 4 [Check-Off of Union Dues], 22 [Grievance Procedure] and 80 [Term of Agreement]. No other articles shall apply.

13. After receiving Mr. Logan’s letter, bargaining between the parties’ continued. No proposal was tabled by either party to amend the Collective Agreement with regard to Student PIL payments.

14. On or about December 24, 2008, the parties achieved a Memorandum of Settlement (MOS) [see attachment at Tab B].

15. On or about January 30, 2009, OPSEU ratified the MOS.

16. On or about February 26, 2009, the Employer ratified the MOS.

17. Student Fixed Term Contracts

18. Starting on or about February 18, 2009, some Ontario Place Grievors executed Unclassified Service Contracts, Group 1 – Students (hereinafter “OP Student Contracts”).

19. For example, Grievor Chris Freitas signed an OP Student Contract on February 21, 2009 on a form marked “rev. 2009-1 (02/16/2009)” (see Tab 39 of the Document Book). The OP Student Contract included PIL payments.

20. Starting in or around late April and early May 2009, a number of the Grievors at Rondeau Provincial Park (18 of 25 Grievors), a number of the grievors at the Wheatley Provincial Park (7 of 13 grievors), the grievors at the Ontario Travel Centres (4 grievors) and the grievor at Restoule Provincial Park signed WIN Employee Action Request Forms (hereinafter “WEAR Form”) marked “rev. 2008/09” which included PIL payments. (see the Document Book).

21. Ceasing Student PIL payments

22. On or about April 30, 2009, Mr. Logan wrote to Mr. Gould in a letter entitled: re Student Pay in Lieu”. Mr. Logan stated:

Further to the letter provided to you on December 3, 208, which advised you that the Employer provided students (as defined in Article 33.1) with pay-in-lieu of benefits, vacation and statutory holidays in error, I am writing to advise you that this practice will end effective May 4, 2009. The Employer will not seek to recover any payments made to students up to this date. [see the attachment at Tab C].

21. On May 4, 2009, Mr. Kevin Sawicki, Acting Director of the Union Management Relations, MGS, wrote to the HROntario Leadership Team. Mr. Sawicki concluded his letter by stating:

Effective May 4, 2009, student employees (as defined in Article 33.1) will not longer be provided with pay-in-lieu of benefits, vacation and statutory holiday. This change will be processed for the May 28, 2009 pay date. Any payment previously provided to students will not be recovered. A communication regarding this change will be sent to ministry managers via MyOPS and OPSEU has been notified of the same [see the attachment at Tab D].

22. A number of Ontario Place grievors executed OP Student Contracts after May 4, 2009 which included PIL payments. At Ontario Place, this included Grievor Edwin Kwok (see Tab 39 of the Document Book). Starting on or about May 12, 2009, Ontario Place Grievors signed revised OP Student Contracts which did not include any PIL payments [see OP Contracts attached at Tab E].

23. Ontario Place also stamped and dated OP Student Contracts after May 4, 2009. This includes OP Student Contracts [rev.2009-1 (02/16/2009)] accepted by Grievor Freitas (stamped May 5, 2009), Grievor Kwok (stamped May 15, 2009) and Grievor Vallecillo (stamped May 6, 2009) (see Tab 39 of the Document Book).

24. Starting on May 5, 2009, Ontario Place also stamped and dated some OP Student Contracts [rev. 2009-1 (02/16/2009)] increasing the “salary Rate (per hour)” from $9.17 to $9.50” by hand and crossing out the PIL percentage, amending it to state “0.00%” by hand [see OPStudent Contracts attached at Tab F]. For another Grievor, Ontario Place stamped and dated her OP Student Contract [ rev. 2009-1 (02/16/2009) with the “Salary Rate (per hour stated as “$9.17” and the PIL percentage as “8.16%” [see OP Student Contracts attached at Tab G].

25. On May 22, 2009, Mr. Sawicki wrote another memorandum to the HR Ontario Leadership Team. Mr. Sawicki attached a Key Messages for OPSEU manager to convey to Students [see the attachment at Tab H].

26. By the end of May 2009, both Rondeau and Whatley Provincial Parks began using revised WEAR Forms (now “re. 2009/04”) that indicated that Students had no entitlement to PIL payments (e.g., see Table 17 of the Document Book; see also the revised Induction Interview Form).

27. More specifically, seven of the 25 Rondeau Provincial Park grievors signed revised WEAR forms [rev. 2009/04] (and, in some cases, signed the reviewed Induction Interview Forms and/or received updated confirmation letters). (see Tab 13to 19 of the Document Book).

28. Similarly six of the 13 Wheatley Provincial Park grievors signed revised WEAR forms…

29. May 28, 2009 – PILS No Longer Reflected on Student Pay Cheques

30. On or about May 28, Students received their bi-weekly pay cheque. This pay cheque did not include any PIL payments.

31. On or about May 28, 2009, Mr. John Tracogna, Ontario Place’s General Manager, sent an email memorandum to all Ontario Place Students in OPSEU Classifications. Mr. Tracogna also instructed all Ontario Place managers to share his email with all students who did not receive Ontario Place email. Mr. Tracogna stated, inter alia, that “you will no longer be provided with pay-in-lieu of vacation and statutory holiday, in addition to your hourly rate. This is reflected on the May 28, 2009 pay”. The memorandum was copies to the OPSEU Local President. [see the attachment at Tab I].

32. On or about May 29, 2009, either Park Superintendent Mr. Scott Varley or Assistant Park Superintendent Julie Foster informed Students at Rondeau Provincial Park that they would not receive PIL payments and this was reflected on the May 28, 2009 pay cheque [see attachment Tab J].

33. In the week of May 11, 2009 and on or about May 27, 2009, Ms. Christine Jacobs, the Grievor at Restoule Provincial Park, was advised that she would not receive PIL payments as reflected in her May 28, 2009 pay cheque (see email at Tab 40 of the Document Book].

34. Between May 29, 2009 and June 3, 2009, Park Superintendent Mr. Ross Hart informed Students at Wheatley Provincial Park that they would not receive PIL payments as reflected on their May 28, 2009 pay cheque.

35. On June 2, 2009, Union Management Relations provided OPS managers with a “question and answer” document to further assist managers in responding to questions from students [see attachment at Tab K].

36. On or about June 5, 2009, OPSEU issued as news release, quoting OPSEU President, Mr. Smokey Thomas [see attachment at Tab L]

37. Filing of the Student PIL Grievances

The Ontario Place Group Student PIL Grievance

36. From June 3 to June 17, 2009, the grievors at Ontario Place signed a Group Grievance list. The Grievance stated:

We grieve that our rights under the Collective Agreement have been violated including but not limited to articles 2 and 7. The employer has failed to pay me in accordance to signed contract [see Tab 39 of the Document Book].

37. On or about July 16, 2009, the Employer’s designed senior human representative at Stage II, Robert Gordica, Corporate staff Relations Officer, MGS, met with Cameron Walker, OPSEU Representative, and other in accordance with Article 22.3.2 of the Collective Agreement. Mr. Walker, on the Union’s behalf, presented the Ontario Place Group Grievance. Mr. Walker also presented the Grievance of Sean Crawford (ministry of Environment) dated June 26, 2009.

38. On or about July 20, 2009, Mr. Gordica and Mr. Walker agreed to extend the time limits for the Employer’s State 2 decision regarding the Ontario Place Group Grievance and the Crawford Grievance until Wednesday, July 29, 2009 [see the attachment at Tab M].

39. On or about July 29, 2009, Mr. Gordica sent an email entitled “Student Vac Pay Grievances” to Mr. Walker, confirming a discussion that he had had with Mr. Walker. In his email, Mr. Gordica confirmed that the Employer would agree to waive Article 22 Stage 2 meetings for any Student PIL grievance. Mr. Gordica continued:

Notwithstanding the above, the Employer does not waive the right to raise an objection to timeliness of any grievance submitted that has been waived for Stage 2 meeting. [see the attachment at Tab N].

40. Mr Gordica concluded that, as of July 27, 2009, in respect of any Student PIL grievance, the Employer:

[B]y way of this email, at the earliest opportunity to do so, hereby services effective notice to the Union that the Employer reserves the right to make any objection with regard to timeliness and/or raise and rely on any other objections to the Grievance Settlement Board’s jurisdiction to address the matter should ht e matter proceed any further than Stage 2.

41. Later on July 27, 2009, Mr. Walker advised Mr. Gordica that he would be informing OPSEU Staff Representatives of Mr. Walker’s support for “waiving the step 2s”, but stated that he would not be in a position to waive a Stage 2 meeting “where the local members insist on it proceeding.” However, he stated, “I will ask our Staff Reps to pass along to the locals that you have been designed as the step 2 representative for the employer and that the ministries will be forwarding the grievances to you for coordination versus the ministries setting up their own step 2s.”

42. On July 28, 2009, Mr. Gordica provided the Employer’s Stage II responses to the Ontario Place Group Grievance and the Crawford Grievance. In both cases, the Employer raised the objection of timeliness of the grievances as well as their inarbitrability. (see Tab 39 of the Document Book).

43. On or about July 31, 2009, OPSEU referred the Ontario Place Group Grievance to arbitration before the GSB.

Rondeau Provincial Park Student PIL Grievances

44. On or about August 27 and 28, 2009, 25 grievors from Rondeau Provincial Park filed identical grievances, stating:

I grieve that my rights under the Collective Agreement have been violated including, but not limited to articles 2 & 7. The employer has failed to pay me in accordance to signed contract (see Tabs 1 to 25 of the Document Book).

45. No Stage II meetings were requested in respect of these grievances.

46. On or about November 2, 2009, OPSEU referred these grievances to arbitration before the GSB.

Wheatley Provincial Park Student PIL Grievances

47. In grievances dated between August 26 and September 3, 2009 [and one on September 25,2009], 11 grievors from Wheatley Provincial Park filed identical grievances, stating:

I grieve that my rights under the Collective Agreement have been violated including but not limited to Articles 2 & 7. The employer has failed to pay me in accordance to signed contract [see Tab 26 to 38 of the Document Book).

48. Two grievors grieved:

I grieve that my rights under the Collective Agreement have been violated included, but not limited to articles 2 & 7. My rights under the Employment Standards Act.

49. No Stage II meetings were requested in respect of these grievances.

50. On or about November 2, 2009, OPSEU referred these grievances to arbitration before the GSB.

Restoule Provincial Park Student PIL Grievances

51. In her grievance dated August 27, 2009, the Grievor, Ms. Jacobs, states:

I grieve under article 2 that management has denied me monies afford to me in my contract and any other articles or applicable legislation (see Tab 40 of the Document Book).

52. No Stage II meeting was requested in respect of this grievance.

53. On or about September 10, 2009, OPSEU referred this grievance to arbitration before the GSB.

Ontario Travel Centre Student PIL Grievances

54. There are also four grievances form students who had worked at various Ontario Travel Centres in the Province. Each grievance form states:

The Employer has violated article 2 and 3, but not exclusive of the collective agreement by making an offer of employment in bad faith and not respecting its conditions. (see Tabs 41 to 44 of the Document Book).

55. Two of these grievances are dated June 20, 2009 and two are dated June 30, 2009.

56. Grievor Catherine Bedard signed a revised WEAR form (rev. 2009/04] which did not include any PIL payments (see Tab 41 of the Document Book)

57. Grievor Cassandra Joly signed a revised WEAR Form (rev.2009/04] which did not include any PIL payments (see Tab 44 of the Document Book].

58. No Stage II meetings were requested in respect of these grievances.

59. On or about September 10, 2009, OPSEU referred this grievance to arbitration before the GSB.

60. Consolidation

61. On or about November 4, 2009, the parties agreed at JFR to schedule a number of grievances together with the Ontario Place Group Grievance.

62. On or about January 13, 2010, the parties agree at JFR to schedule further grievances together with the Ontario Place Group Grievance.

63. Until May 28, 2009, the Employer had consistently paid student PIL payments for many, many (20+) years.

THE EMPLOYER’S PRELIMINARY OBJECTIONS

3The Employer raised a number of objections to the jurisdiction of the Board. They may be summarized as follows:

1. The grievances, on their face, do not raise a prima facie case (i.e., an arbitrable dispute) because:

(a) The grievances allege a “free standing” violation of Article 2 – Management Rights – and the Board does not have jurisdiction to review management’s action unless there is some “hook” to the collective agreement. Article 7 does not apply to Students (which the Union concedes), so all that is left is Article 2.

(b) The grievances also allege a violation of grievor’s pre-employment contract which, the Employer claims, is unenforceable in a collective bargaining regime. In addition, a number of grievors never signed a pre-employment contract or a WEAR form.

(c) The Union, once counsel was retained, raised a number of “late blooming” arguments, including that the Union would assert that the Employer’s cessation of student PIL payments violated Article 33.3 of the collective agreement and that the Union would argue estoppel. The Employer asserts that these allegations are an improper expansion of the grievances and that the Union should not be allowed to raise these issues at this stage of the proceeding, or be permitted to assert that the Board has jurisdiction over the grievances on those grounds. It further asserts that individual employees may not raise an estoppel claim.

2. The Employer asserts that the Wheatley and Rondeau Provincial Park grievances were untimely filed and untimely referred to arbitration.

Each of the contentions will be addressed below.

1. The “free standing” violation of Article 2.

4The Board has repeatedly and consistently held that it has no “free standing” jurisdiction to review the exercise of management rights for reasonableness, and that the “Board’s jurisdiction remains restricted to matters arising either explicitly or implicitly from the collective agreement.” OPSEU (Dobroff et al.) and Ministry of the Environment, GSB No. 2003-0905 (2008)(Dissanayake). As counsel for the Employer phrased it, there must be a “hook” to the collective agreement for the Board to assert jurisdiction. The Union concedes this point.

5Where the parties diverge is on the issue of whether the Union’s “late blooming” claim that the Employer’s actions violate Article 33.3 of the collective agreement, as well as its contentions regarding estoppel, constitute an improper change in grounds and expansion of the grievance.

6Article 33.3 of the collective agreement provides: “A ‘student position’…is an unclassified position with terms and conditions specifically applicable to students.” The Union asserts that PIL payments historically have been paid to students and is a “term and condition specifically applicable to students.” It submits that Article 33.3 explicitly, or at least implicitly, creates a substantive right to such payments which the Employer cannot unilaterally cease paying.

7In the Employer’s view, the Union’s assertion regarding Article 33.3 is an entirely new claim, raised for the first time shortly before the hearing. The Employer argues that the grievance had only referenced Article 2 and 7 (which is inapplicable) and did not assert any substantive right under Article 33. It submits that to allow this claim to proceed would, in effect, substitute a new grievance for the original one and should not be permitted. In support, the Employer cites to the following cases: Re OPSEU (Krajnovic) and Ministry of Natural Resources, GSB No. 2049/90 (1991)(Low); Re Cold Springs Farms Ltd. and Cold Spring Farms’ Employees’ Association, Local 200 (Jack)(2000), 2000 CanLII 50240 (ON LA), 88 L.A.C. (4th) 213 (Goodfellow); Re Algonquin College and OPSEU, Local 415 (2007) C.L.B. 11763 (Slotnick); Re Imperial Tobacco Canada Ltd. and Bakery, Confectionery, Tobacco Workers and Grain Millers, Local 364T (Potvin Grievance) [2000] O.L.A.A. No. 779 (Keller); Re OPSEU (Staffing Grievance) and Fanshawe College [2004] O.L.A.A. No. 583 (Howe); Re Electrohome Ltd. and International Brotherhood of Electrical Workers, Local 2345 (1984), 1984 CanLII 5204 (ON LA), 16 L.A.C. (3d) 78 (Rayner); Re OPSEU (Nadeau) and Ministry of Transportation, GSB No. 2008-3497 (2009)(Gray).

8The Employer also points to the remedies that the Union is now seeking, which in its submission, are appropriate only in policy grievances – not individual grievances. It argues that the differences in the remedies sought establishes that the Union is raising a completely new claim. In support, it cites to Re OPSEU (Haynes) and Ministry of Correctional Services, GSB No. 1246/89 (1990)(Kirkwood).

9The Union asserts that its “late blooming” assertion that the Employer’s actions violate Article 33.3 is not a new issue, but part and parcel of the original grievance, broadly construed. The Article 33.3 argument and estoppel are new legal arguments, it submits, not a change in the issue raised by the grievance – i.e., that the Employer’s failure to pay student PIL violated the collective agreement. As such, it argues, there is no improper expansion of the original grievance and no “free-standing” violation of Article 2. In support of its position, the Union cites to Re OPSEU (Mackinnon) and Guelph General Hospital (2009), 186 L.A.C. (4th) 17 (Howe); Re York University and York University Staff Association (1985), 1985 CanLII 5346 (ON LA), 20 L.A.C. (3d) 187 (Devlin).

10Most of the grievances are identical. They claim: “I grieve that my rights under the Collective Agreement have been violated including, but not limited to Articles 2 & 7. The employer has failed to pay me in accordance to signed contract.” The grievances are clearly about the PIL payments and the “issue” is whether the Employer’s nonpayment of PIL violates the students’ rights under the collective agreement “including, but not limited to Articles 2 and 7.” Grievances are to be “liberally construed so that the real complaint is dealt with….” Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103 (Ont. C.A.) at p. 108. It is in this context that the question of whether the grievance may be “reasonably construed to encompass” an assertion under Article 33.3, or whether it is “an entirely new matter” must be analyzed. Re OPSEU (Krajnovic), supra at p. 6; Re Imperial Tobacco Canada Ltd., supra at p. 4. As set out in Re Electrohome Ltd. and I.B.E.W., Local 2345, supra at p. 82:

If the issue raised at the hearing is in fact part of the original grievance, a board of arbitration should not deny itself jurisdiction based on a technical objection to the scope of the original grievance. To do so would deny the value of flexibility and would be to compel the parties to draft their grievances with the nicety of pleadings. On the other hand, if the issue raised by one of the parties in not inherent in the original grievance, for the board to permit the party to raise that issue as part of the original grievance would be to deny the parties the benefit of the grievance procedure in an attempt to resolve the issue between themselves. In fact, it would be to permit one party to substitute a new grievance for the original grievance.

Hence we agree with company counsel that the sole problem raised on the preliminary objection is one of characterization. In other words, is the company’s objection technical in nature or is the issue raised by the application of art. 33 and its alleged breach a new dispute between the parties?

11I conclude that the Union’s allegation concerning Article 33.3 is not a new dispute, but a new legal argument in support of its contention that the Employer’s nonpayment of PIL violates the collective agreement. It does not change the issue raised by the grievance – whether nonpayment of PIL violates the collective agreement – though it does raise a new legal argument in support of that claim. This is permissible, and is not an improper expansion or change in the grievance.

12In terms of the remedies that the Employer claims that the Union is now seeking, I have no evidence or documents regarding that issue. A change in the remedies requested may indicate a new issue. Re OPSEU(Staffing Grievance) and Fanshawe College, supra. But for the reasons set out above, I conclude that the Article 33.3 allegation is not a different issue. Consequently, at this point, the question of remedy is premature. As noted in Re OPSEU (Haynes), supra – there are difference between individual and policy grievances, but the issue of remedies need not be addressed in this preliminary motion.

13Likewise, the Union’s assertion that the Employer is estopped from its alleged promise to pay students PIL is also permissible. As stated in Re OPSEU (Mackinnon Grievance) and Guelph General Hospital, supra at par. 4, “[e]stoppel is merely an alternative legal theory upon which the Union relies in support of its contention….” In so ruling, I would note that in appropriate cases, an estoppel may arise between the employer and an individual employee. Re OPSEU (Sutherland) and Ministry of Labour, GSB No. 2006-0519(2008)(Dissanayake) at par. 47 and cases cited therein.

14The Employer is correct, however, that the grievors may not seek to enforce their pre-employment contracts, or promises, which provided for PIL payments in this arbitration. Re OPSEU (Sutherland) and Ministry of Labour, supra at par. 30. The Union conceded this at the hearing. Accordingly, whether or not a grievor signed a pre-employment contract or a WEAR form is irrelevant to the issue of jurisdiction because pre-employment promises are unenforceable through grievance arbitration.

15The Union contends, however, that the Employer’s promises regarding PIL payments were reaffirmed after the grievors began work for the summer. It asserts that, as in Sutherland, supra at par. 31, “the promise was initially made pre-employment, and was repeated post-employment.” As in Sutherland, supra, I conclude that the Board has jurisdiction over such a claim.

16The Employer asserts, however, that for estoppel to apply, the promise or representation must be related to the collective agreement explicitly or implicitly, and that Article 33.3 contains no such promise – nor do any of the provisions applicable to students. That contention, however, goes to the merits of the Union’s estoppel claim – not whether the Board has jurisdiction to review the claim.

17Accordingly, for these reasons, the Employer’s preliminary motion that the grievances are prima facie inarbitrable is denied.

2. Timeliness of the Wheatley and Rondeau Provincial Park Grievances

18The Employer asserts that the Wheatley and Rondeau Provincial Park grievors failed to file their grievances in a timely manner and that the Union failed to timely refer the grievances to arbitration under the collective agreement.

19The Employer contends that the grievors were advised that their paycheques would not include PIL payments in late May 2009 and that their May 28, 2008 paycheques, in fact, did not include PIL. By the Employer’s calculations (based on the time frames set out in Article 22 of the collective agreement), the grievances should have been filed no later than August 6, 2009, and were, in fact, not filed until August 27 and 28, or August 31, 2009. It also submits that the referral to arbitration should have taken place by September 28, but did not take place until November 2, 2009.

20The Union contends that the Employer never raised a timeliness objection to the Wheatly and Rondeau grievances until the preliminary objection, and thus waived its right to do so, citing the following cases: Re Centennial College of Applied Arts and Technology and OPSEU, unreported decision of Arbitrator Schiff, Oct. 17, 1997; Re The George Brown College of Applied Arts and Technology and OPSEU, unreported decision of Arbitrator Burkett, Dec. 29, 1995; Re OPSEU (Fung/Anand) and Ministry of Revenue, GSB No. 1798/89 (1991)(Stewart); Re OPSEU (Tiel) and Ministry of Solicitor General and Correctional Services, GSB No. 1419/94 (1997)(Verity). It argues that the Employer reserved its right to argue timeliness in regard to the Ontario Place grievances, but not to any subsequent grievances filed in other locations. It further submits that the Wheatley and Rondeau grievances were timely filed because the Employer’s failure to pay PIL is a continuing violation. In support, its cites to Re OPSEU (Hunt et al.) and Ministry of Attorney General, GSB 0534/01(2003)(Abramsky); Re Port Colborne General Hospital and ONA (1986), 1986 CanLII 6715 (ON LA), 23 L.A.C. (3d) 323 (Burkett). In the alternative, the Union argues that I should exercise my discretion to extend the time limits given the importance of these grievances to the grievors and the lack of any prejudice to the Employer. Re OPSEU (Palazoo) and St. Lawrence and District Ambulance Service Ltd., GSB No. 1455/97 (1998) (Abramsky).

21In response, the Employer asserts that it did not waive the right to raise a timeliness objection, but instead, specifically reserved its right to make such arguments, as well as any other jurisdictional argument, before the GSB. It points to the email sent on July 27, 2009 by Robert Gordica to Cameron Walker to establish that the Employer never waived its right to object.

22The July 27, 2009 email stems from discussions between Mr. Gordica and Mr. Walker in relation to the Ontario Place group grievance and the individual grievance of Sean Crawford. It seems clear from the email exchange that, at the time, it was reasonably anticipated that there would be more grievances from students in various ministries concerning the student PIL issue. Mr. Cameron’s response to the email from Mr. Gordica confirmed his support for the waiving of Step 2s, “so we can expeditiously find out corporately what grievances are out there…” and noting that Mr. Gordica would be handling all Steps 2s so “that the ministries will be forwarding the grievances to you for coordination…” Earlier, Mr. Gordica had sent an email to Mr. Cameron confirming that the Employer would waive Step 2 meetings “for any Student Vacation/Stat/Benefits grievances submitted to the Employer that were not included as part of our Stage 2 meeting held July 16, 2009 for the Ontario Place group and Sean Crawford grievances.” It continued:

Notwithstanding the above, the Employer does not waive the right to raise an objection to timeliness of any grievance submitted that has been waived for a Stage 2 meeting and by way of this email, at the earliest opportunity to do so, hereby serves effective notice to the Union that the Employer reserves the right to make an objection with regard to timeliness and/or raise and rely on any other objection to the Grievance Settlement Board’s jurisdiction to address the matter should the matter proceed any further than Stage 2.

23When considered in context, this email was meant – at the earliest opportunity – to preserve the Employer’s right to object to the timeliness of “any grievances” submitted with respect to PIL payments as well as raise other potential objections. It was not limited to the grievances already submitted, but to future grievances that were anticipated on the issue. There was no evidence, and no assertion, that the Union objected to Mr. Gordica’s reservation of the rights as set out in his July 27, 2009 email.

24In Re OPSEU (Tiel) and Ministry of Solicitor General & Correctional Services, supra, the Board quoted from Re OPSEU (C. Tharakan) and Ministry of Consumer and Commercial Relations, GSB No. 1978/86 (Kirkwood) at pp. 3-4, which relied on a passage from Collective Agreement Arbitration in Canada, at p. 210, that “[t]he right to object [to procedural irregularities] at a later stage can be retained by a statement to that effect at the first opportunity or by a timely objection, even though it is not raised again until the hearing.” Arbitrator Kirkwood then stated that “[t]he issue is whether or not the ‘innocent party’, the employer, acted in such a manner to lead the union to believe that the objection was waived.”

25The July 27, 2009 email is the Employer’s retention of the right to raise timeliness and other procedural as well as substantive objections to the GSB in regard to student PIL grievances, should the matter go beyond Stage 2. As a result, the Union should not have been misled into believing that any timeliness objections had been waived by the Employer. To the contrary, the Employer reserved its right to object. Therefore, I conclude that the Employer did not waive its rights to object to the timeliness of subsequent PIL grievances, or raise other procedural objections. The Union could have, but did not, object to the Employer’s July 27, 2009 email.

26The Union further argued, in the alternative that the grievances are timely because the Employer’s failure to pay PIL is a continuing violation. In the further alternative, it asserts that I should exercise my discretion to extend the time limits for the filing of these grievances.

27In response, the Employer asserts that its cessation of PIL payments was a single act, like a discharge, though it had continuing consequences. As a single event, it submits, it should not be considered a continuing violation.

28In my view, the claim that the Employer improperly ceased paying student PIL is a classic continuing violation. If PIL is required as the Union asserts then each pay cheque without it represents a new violation. The duty to pay PIL, if it exists, is a recurring duty. Re OPSEU (Hunt et al), supra and cases cites therein.

29In the alternative, I conclude that this would be an appropriate case to exercise my discretion to extend the time for filing of grievances. The delay was quite short. The issue of PIL is of real significance to the grievors and important to the interpretation of the collective agreement and there is no evidence of any prejudice to the employer. Re OPSEU (Palazoo), supra.

30There is no discretion, however, to extend the time for referring a grievance to the GSB. Re OPSEU (Johnston) and Ministry of the Attorney General, GSB NO. 2009-1147(2009) (Dissanayake); SEIU, Local 204 and Leisureworld Nursing Home, supra. Although an employer may waive such procedural defects, Re OPSEU (Tiel), supra, the June 27, 2009 email reserved the Employer’s right to raise timeliness and other procedural as well as substantive objections.

31I have some real concern about permitting such a broad retention of the right to raise objections that may arise in the future. It creates a potential for abuse – just send a broad-based email reserving your right to object and you create a shield against any claims of waiver. It may also undermine the ability of the other party to know, well in advance, that such an objection will, in fact, be raised. But under the specific facts of this case, the Employer properly reserved its right to make timeliness and other objections. At the time, it was unclear regarding the number of grievances that might be filed or when they might be filed, as well as when and if they would be referred to arbitration. There was a potential for a very large number of grievances. According to counsel there are approximately 1500 student employees employed in the summer in the province. In that kind of situation, a broad retention of the right to make timeliness and other objections makes sense, rather than deal with each on an individual basis. Under these facts, the Employer’s blanket retention of the right to object cannot be considered an abuse. Further, the Union could have, but did not, object at the time.

32Accordingly, because the Employer did not waive its right to object to the timeliness of the referral to arbitration, the grievances that were not referred to the Board in a timely manner must be dismissed.

CONCLUSION:

1. The Employer’s preliminary motion to dismiss the grievances on the basis that they fail to raise a prima facie case is denied.

2. The Employer’s preliminary motion to dismiss those grievances that were not referred to arbitration in a timely manner is granted. The Employer’s remaining motions to dismiss are denied.

3. Additional hearing dates may be scheduled through the GSB.