GSB#1993-2410, 1993-2412, 1998-0731, 1993-2409, 1993-2409
UNION#1993-0530-0013, 1993-0530-0026, 1998-0530-0033, 1993-0530-0025, 1993-0530-0006
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Della Terza)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Bram Herlich
Vice-Chair
FOR THE UNION
David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Susan Munn and Ferina Murji Ministry of Government Services Counsel
HEARING
December 18, 2009.
Decision
1In 1993, the grievor filed three similar grievances related to the employer’s alleged failure to enforce its policy with respect to smoking in the workplace. Some ten years later, he filed another three such grievances.
2These matters were referred to this Board and on February 28, 2004, the parties entered into a memorandum of settlement in respect of them. Some of the material provisions of the parties’ agreement read as follows:
…whereas the parties wish to fully and finally settle all issues between them respecting these grievances and the Grievor’s employment to date;
Therefore the parties agree to the following terms and conditions as a full and final settlement of all issues between them:
The Union and the Grievor agree that the terms of this settlement fully and finally resolve any issues respecting the Grievor’s employment to the date of this settlement.
The Employer shall pay to the Grievor the net sum of $1,500.00 to be paid within 30 days of this settlement.
The Employer agrees that upon the cessation of the Grievor’s WSIB benefits, his sick leave bank will be credited with 130 days.
The Employer agrees that the Grievor will be able to access the 130 days in his sick leave bank upon the cessation of his WSIB benefits upon providing the Employer with a doctor’s note every two months confirming the grievor’s inability/unavailability to work and agrees that the Grievor will not be placed in the attendance review program as a result of this absence.
3Notwithstanding the settlement entered into some six years ago, the union requested that the matter be re-listed for hearing. It claims that, as a result of certain recent developments, which are not the fault of any of the parties, the settlement has been frustrated. It therefore asks me to declare that the settlement is no longer valid and binding, leaving the parties free to either renegotiate its terms or have the grievances in question be litigated afresh.
4The employer disputes the union’s claim and, by way of a preliminary objection, asks that I affirm the continuing binding effect of the parties’ settlement and reject the union’s request.
5The union prepared and filed a statement of particulars. The employer, at least for the purposes of its motion, accepted these asserted facts (though not necessarily the legal conclusions asserted in the particulars) as true and provable. But even with that limited concession, the employer argues that I am without jurisdiction to entertain the union’s request because the matter is settled. Alternatively, even if the remedy sought by the union might be available in a case where a settlement is frustrated, the facts asserted and relied upon by the union do not amount to frustration and do not otherwise provide the basis for this Board to intervene in a long settled matter.
6In February 2004 when the parties negotiated the settlement partly set out above, the grievor was off work and in receipt of WSIB benefits for reasons not related to his grievances. He had been off work since September 2003. He has not returned to work since and has recently received notification from the WSIB that his full Loss of Earnings benefit (less his secured CPP benefits) “is now locked in until you reach age 65 unless there should be a pertinent material change…” (As a result of an appeal to a Review Tribunal under the Canada Pension Plan, the grievor was found to have been suffering from a severe and prolonged disability since going off work in September 2003 and was awarded CPP disability benefits accordingly).
7The union asserts that the settlement provides two central benefits to the grievor. The first was a payment of $1500 (which the grievor agrees to repay in the event the union’s motion to declare the settlement of no force and effect is successful).
8It is the second benefit, however, which the union claims was the more significant one. Once the grievor’s WSIB benefits ceased, he was to receive a credit of 13