GSB#2008-3252

UNION#2008-0234-0319

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Liantzakis)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Brian Loewen Ministry of Government Services Legal Services Branch Counsel

HEARING

October 8, 2010.

Decision

1In a grievance dated December 18, 2008, Ms. T. Liantzakis claims that the Employer contravened Article 9 of the Collective Agreement, the health and safety provision. The Union is seeking remedies on her behalf that include a declaration, directions and compensation. At the hearing, the Employer requested that the grievance be adjourned pending the outcome of the Union’s judicial review of OPSEU (Monk et al) and Ministry of Community Safety and Correctional Services, GSB File No. 1995-1694, April 29, 2010 (Gray) (“the Monk decision”). This decision addresses whether the circumstances of this case warrant such an adjournment.

2For the purpose of dealing with the Employer’s adjournment motion, counsel provided me with a factual context without calling oral evidence. In support of his submissions, counsel for the Employer relied on the following decisions: OPSEU (Therrien) and Ministry of Safety and Correctional Services, GSB File Nos. 2004-3023 et al, June 5, 2008 (Lynk); Re Shaughnessy Hospital Society and Hospital Employees’ Union, Local 180 (1984), 1984 CanLII 5175 (BC LA), 16 L.A.C. (3d) 341 (Hope); and, Re Hamilton Health Sciences Corporation and CUPE, Local 4800, an unreported decision dated February 25, 2005 (Knopf). Union counsel referred me to Re Mansfield-Denman General Co. Ltd. and United Rubber Workers, Local 455 (1977), 1977 CanLII 2927 (ON LA), 14 L.A.C. (2d) 229 (Hinnegan) and Re Canada Post Corp. and C.U.P.W. (1992), 1992 CanLII 14462 (CA LA), 27 L.A.C. (4th) 93 (Outhouse).

3Ms. Liantzakis sustained an injury at work on March 18, 2006, while performing duties as Youth Officer at the Invictus Youth Centre (“IYC”). It is unnecessary to refer in detail to the incident that resulted in her injury. Suffice it to indicate that Ms. Liantzakis was involved with others in moving an uncooperative and aggressive female youth offender from her unit to segregation. Part of this exercise consists of placing the youth offender in a van to transport her from her unit to the segregation area located in another building. Ms. Liantzakis followed the youth offender into the back of the van and someone closed the van door. Although other officers were present, along with an operational manager, Ms. Liantzakis was the only officer in the van with the offender, contrary to policy. The youth offender again became aggressive and assaulted Ms. Liantzakis. Ms. Liantzakis defended herself and attempted to get control of the youth offender. Her colleagues were unable to enter the vehicle and to assist her immediately because the van door lock was faulty. The Union claims that the Employer knew about the faulty lock before the incident and had failed to repair it. Ms. Liantzakis became aware of pain in her right hand as she walked backed to her work location. She visited the nurse at the institution and then attended at a hospital. In May of 2006 she was diagnosed with reflex sympathetic dystrophy. Ms. Liantzakis has not returned to work since the date of the incident. She is in receipt of WSIA benefits for loss of earnings. Her injury has been recognized as a permanent disability. The IYC was closed in 2006.

4This matter was initially scheduled to be heard on December 15, 2009. In November of 2009, the parties agreed to adjourn the hearing on a without prejudice basis pending the release and review of the Monk decision. Vice-Chair Gray in Monk had before him 235 grievances from individuals claiming a violation of the health and safety article and seeking “redress for their allegedly having been exposed to second hand smoke in their workplaces.” The Union sought remedies that included a declaration that the Employer contravened the health and safety article and “general damages in compensation for this violation.” The Employer took the position that the Board is precluded by the relevant workers’ compensation legislation and a proper interpretation of the health and safety article from granting compensation for the alleged injuries the Union claimed had occurred. The parties agreed that Vice-Chair Gray should address certain issues on a preliminary basis. One of the issues was whether the Board can award damages to an employee for an accident if the alleged accident is compensable under the WSIA. In his consideration of the issues after six days of hearing, Vice-Chair Gray reviewed a number of decisions, including OPSEU (Lariviere) and Ministry of Community Safety and Correctional Services, GSB No. 2002-2124, October 6, 2005 (Dissanayake). In Lariviere, Vice-Chair Dissanayake concluded that the WSIA did not restrict the Board’s jurisdiction to award compensation for a breach of the health and safety article. Vice-Chair Gray declined to follow Lariviere. Although he concluded that a monetary remedy might flow from a breach of the health and safety article, Vice-Chair Gray also determined that “this board cannot award a grievor damages “for or by reason of an accident happening to a worker or an occupational disease contracted by the worker while in the employment of the employer” if the alleged accident or disease is or was compensable under the WCA or WSIA, whichever applies.”

5In its judicial review application the Union seeks an order from the Court quashing and setting aside the Monk decision. In particular, it seeks an order that the Board’s jurisdiction to award damages for a violation of the health and safety provision is not ousted by the operation of s. 26(2) of the WSIA.

6Although the Union intends in this matter to seek remedies, including compensation, for a contravention of the health and safety provision which would not be precluded by the Monk result, it also seeks compensation for losses due to the accident Ms. Liantzakis had at work which the Monk decision found this Board cannot award because of s. 26(2) of the WSIA, a determination the Union is attempting to overturn by a judicial review application. It is these circumstances which leads the Employer to request that this grievance be deferred until the Courts have had the opportunity to review the Monk decision. Counsel for the Employer noted that the parties spent many days arguing about the significant remedial issue before Vice-Chair Gray and argued that it makes little sense to reargue that issue in this case without having the benefit of the Court’s view of the Monk decision. Counsel argued that the Union, having elected to judicially review the Monk decision, should not be permitted to effectively seek a review of that decision before another Vice-Chair of the Board. Counsel submitted that another determination by the Board on the disputed remedial issue before the judicial review process is completed will merely lead one of the parties to pursue another judicial review, thereby preventing a final resolution of this matter for some time in any event. Employer counsel recognized that adjourning the hearing of this grievance until the Court review process is completed will result in a considerable delay, particularly when both counsel believe it is likely that the matter may proceed at least to the Court of Appeal. However, counsel submitted that delay should not weigh against deferring the hearing of the grievance when it took Ms. Liantzakis almost three years from the incident with the youth offender to file her grievance. It appears that the Employer did not make a timely objection to the late filing of the grievance. Employer counsel also argued that the closure of the IYC also weighs in favour of deferring the hearing of the grievance. Counsel advised that if the matter was not adjourned, the Employer intended to bring a motion to dismiss the grievance because of its view that there is no remedy available to Ms. Liantzakis in the circumstances.

7In opposing the Employer’s adjournment request, Union counsel emphasized that the judicial review of the Monk decision relates to only one of the remedies the Union is seeking and that there is no dispute that the Board has the jurisdiction to grant the other remedies that the Union will be requesting. Counsel submitted that the grievance deals with an important issue, namely health and safety, and that the issue has not been made moot or irrelevant by the closure of the IYC. Counsel also submitted that the late filing of the grievance and the time that has elapsed since then are not factors in favour of adjourning the hearing. Union counsel argued that the judicial review decision may not be helpful in that the Court may simply find that the Monk decision was not unreasonable. He also submitted that acceding to the Employer’s request will result in a very long delay which will create considerable prejudice for the Union and Ms. Liantzakis. Counsel argued that a balancing of the relevant interests weigh in favour of hearing the grievance and dismissing the Employer’s request for an adjournment.

8Having considered the submissions of counsel, I find that the appropriate balancing of interests does favour proceeding with hearing the grievance rather than adjourning the matter until the judicial review of the Monk decision is completed.

9Granting the Employer’s adjournment request would result in a considerable delay in the hearing of this grievance, particularly if the judicial review of the Monk decision reaches the Court of Appeal. Such a lengthy delay would be prejudicial to both parties. There will likely be some challenges even now for the Union and the Employer to marshal evidence of an event which took place in March of 2006. It is safe to assume that those challenges will be greater if the hearing was adjourned until the judicial review process is completed. Although the motion to dismiss the Employer intends to make, if successful, will mean that it will be unnecessary for both parties to prove any facts, one obviously cannot assume at this stage that the Employer’s motion will succeed. I agree with Union counsel that the unchallenged delay in the filing of the grievance does not assist the Employer in its request for an adjournment. If anything, as noted previously, any further delay will likely be detrimental to both parties.

10The Union is seeking remedies in addition to the one remedy that was addressed in the Monk decision and the one that is the focus of the judicial review application. Adjourning the hearing to see what the Divisional Court decides on one remedial issue, albeit a significant issue, would have the effect of delaying potential access to remedies that the Board has the jurisdiction to grant. And as Union counsel noted, there is no certainty that the Court’s decision will provide the parties and the Board with a definitive response about the disputed remedy even if it dismisses the Union’s application.

11I am not satisfied that the length of time it will take to reargue the disputed remedial matter and the possibility of another judicial review application favour granting an adjournment. Having argued the disputed remedial issue at some length before Vice-Chair Gray, it is unlikely that revisiting the issue will consume anywhere near as much hearing time. A further decision on the disputed remedial issue might result in another judicial review application, however, this result need not be inevitable. A common sense agreement by the parties to have the result of the Monk judicial review apply to the decision in this case would avoid a similar judicial proceeding.

12For the foregoing reasons, the Employer’s request to adjourn the hearing of Ms. Liantzakis’s grievance is dismissed. This matter will continue on dates agreed to by the parties.