Ontario Public Service Employees Union (Johnston) v. The Crown in Right of Ontario (Ministry of Attorney General), 2010 CanLII 7283

GSB#2009-1147

UNION# 2007-0640-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Johnston)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Felix Lau Ministry of Government Services Counsel

HEARING

December 10, 2009.

Interim Decision

1The Board is seized with the discharge grievance dated June 8, 2007, filed by Ms. Denise Johnston. It was referred to arbitration on July 14, 2009. The parties are in disagreement as to whether or not the Board has jurisdiction under s. 48(16) of the Labour Relations Act to extend the time limits specified in the collective agreement for referral to arbitration. The parties agreed to obtain a ruling on that jurisdictional issue, and this interim decision deals solely with that issue. Without prejudice to its right to take a contrary position should the Board find in favour of the employer, the union agreed that for purposes of determining the jurisdictional issue only, I may assume that the grievance had been referred to arbitration outside the time limit specified in article 22.4 of the collective agreement.

2The parties referred to the following authorities:

Service Employees International Union, Local 204 v. Leisureworld Nursing Homes Ltd. [1997] O.J. No. 1469, Ont. Div. Ct. April 17, 1997; O.J. No. 4815 Affirmed Ont. Ct. of Appeal, December 1, 1997; Ajax Precision Manufacturing (Triton Division) and U.S.W.A., Local 9042 (Borscevski), [1999] 85 L.A.C. (4th) 280 (Shime); OPSEU (Cherry) and The Crown in Right of Ontario (Ministry of Finance), (January 16, 2003), GSB #0626/01 (Gray); OPSEU (Seager) and The Crown in Right of Ontario (Ministry of Community, Family and Children’s Services), (April 30, 2003), GSB # 1999-1841 (Mikus); James Bay General Hospital v. Public Service Alliance of Canada (2003) 126 L.A.C. (4th) 12 (Ont. Div. Ct); Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (Duffy Grievance) (January 17, 2008) GSB # 2007-2737 etc. (Keller); Amalgamated Transit Union (Blake et al) and The Crown in Right of Ontario (Toronto Area Transit Operating Authority) GSB No. 1276/87, May 3, 1988 (Shime); Columbian Chemicals Canada Ltd. v. Teamsters, Local 89 (Webb Grievance), [2005] O.L.A.A. No. 184 (Kaplan); Hotel Dieu Hospital v. Ontario Public Service Employees Union, Local 469 (Kirby Grievance), [2004] O.L.A.A. No. 891 (Leighton); Kingston Whig-Standard v. Communication Workers of America, Local 30204 [2002] O.L.A.A. No. 39 (Simmons); Surex Community Services v. Ontario Public Service Employees Union, Local 5102 (Wisdom Grievance), [2009] O.L.A.A. No. 81 (Stephens)

3Article 22 of the collective agreement is titled “Grievance Procedure”, and includes the following provisions:

22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this agreement, including any question as to whether a matter is arbitrable.

STAGE ONE

22.2.1 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall meet, where practical, and discuss it with the employee’s immediate supervisor within thirty (30) days after the circumstances giving rise to the complaint have occurred to have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint.

22.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion and/or meeting, it may be processed within an additional ten (10) days in the following manner:

STAGE TWO

22.3.1 If the complaint or difference is not resolved under Stage One, the employee may file a grievance, in writing, through the Union, with their immediate supervisor who will in turn forward the grievance to the senior human resources representative for the ministry or his or her designee.

22.3.2 The senior human resources representative or his or her designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his or her decision in writing within seven (7) days of the meeting with a copy to the Union steward.

22.4 If the grievor is not satisfied with the decision of the senior human resources representative or his or her designee or if he or she does not receive the decision within the specified time, the grievor may apply, through the Union, to the Grievance Settlement Board (GSB) for a hearing of the grievance within fifteen (15) days of the date he or she received the decision or within fifteen (15) days of the specified time limit for receiving the decision.

22.14.1 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.

4Section 48(16) of the Labour Relations Act provides:

48(16) Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where an arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.

5An often cited authority on the scope of s. 48(16) is Re Leisureworld (supra). The Divisional Court, following a review of certain amendments s.48(6) had undergone, stated at p. 201-202:

The jurisdiction to grant relief from time limitations with respect to grievances cannot and should not be interpreted to also grant relief from the time limits for referral to arbitration. Section 48(16) is clear and unambiguous. To conclude otherwise would mean that the deletion of the words “or arbitration” from the 1992 legislation had no effect whatsoever. The words in the statute must be given their clear meaning. The Board had no jurisdiction to extend the time limit for referral to arbitration.

The Ontario Court of Appeal in dismissing an appeal, wrote as follows in its endorsement:

It is clear from the context afforded by several provisions in the Labour Relations Act that the legislation has intentionally drawn the distinction between “grievance procedure” and “arbitration procedure” and, accordingly, in our view did not intend to include steps in arbitration procedure in s. 48(16). The appeal is dismissed with costs.

6The reasoning and interpretation of s. 48(16) in Re Leisureworld has been followed and applied in numerous subsequent arbitration awards as standing for the proposition that s. 48(16) only provides an arbitrator the jurisdiction to extend time limits set out in a collective agreement with respect to the grievance procedure, and that it does not include the jurisdiction to extend time limits for referral to arbitration. For example see, Rainycrest Home for the Aged and C.U.P.E., Local 65 (1996) 1996 CanLII 20410 (ON LA), 57 L.A.C. (4th) 75 (Bendel); Waterloo (Family and Children’s Services) and O.P.S.E.U. (1997) 66 L.A.C.

(4th) 294 (Kaplan); Toronto Board of Education and C.U.P.E., Local 3111 (1997) 1997 CanLII 25127 (ON LA), 67 L.A.C. (4th) 144 (Joachim); Dominion Castings Limited and U.S.W.A., Local 9392 (1997) 1997 CanLII 24954 (ON LA), 67 L.A.C. (4th) 416 (Roberts); Hotel-Dieu Grace Hospital and C.A.W., Local 2458 (2002) L.A.C. (4th) (Knopf).

7Leisureworld has also been applied by the Grievance Settlement Board in interpreting the collective agreement between these parties. In Re Cherry, (supra) at para. 16, Vice-Chair Gray concluded:

The collective agreement gives the GSB no power to extend the collective agreement’s time limit for referring this grievance to arbitration. The union does not suggest that the Crown Employees Collective Bargaining Act, or any of the provisions of the Labour Relations Act that are incorporated therein by reference, gives the GSB the power to extend that time limit. Indeed, the union was unable to identify any basis on which I could conclude, despite the delay in referring it to arbitration, that this grievance is arbitrable.

In Re Seager, (supra) Vice-Chair Mikus at p.11 concluded that the 1995 amendment to s. 48(16) was “a deliberate change to the Act to make it clear that there was to be no relief for a failure to meet the time requirements for referring a grievance to arbitration. The court decision in Leisureworld confirms that.”

8Employer counsel submitted that Re Seager is dispositive of the issue before me. He submitted that the Board in that case considered the identical collective agreement language and the identically worded s. 48(16) of the Labour Relations Act. It made a clear pronouncement that s. 48(16) does not provide the Board the jurisdiction to extend time limits in article 22.4 for referral to arbitration. He submitted that Re Blake, (supra) mandates that I follow Re Seager. In his view, given the Seager decision, it would be inappropriate for me to consider Re Ajax Precision and Re James Bay General Hospital.

9Union counsel argued that I should not follow Re Seager, and that the Blake principle has no application in the particular circumstances. While union counsel offered alternate reasons for not applying the Blake principle, I need consider only one. Counsel argued that both Re Seager and Re Cherry, pre-dated the decision of the Ontario Divisional Court in Re James Bay General Hospital (supra). The Board therefore did not have the benefit of the guidance of the court which had refined the law that had existed under Re Leisureworld. Counsel submitted that in these circumstances the Blake principle does not apply and that I should consider the court decision in Re James Bay General Hospital, without simply following the outdated Board case law.

10Both counsel advised me that their research did not turn up any decision of this Board on this subject, which post-dated Re James Bay General Hospital. The courts have held, and it is now accepted, that when interpreting the Labour Relations Act to determine jurisdiction, the Board is required to be correct. See, Re Leisureworld (Div. Ct at para. 8). The Court in Re James Bay General Hospital has provided an interpretation of s. 48(16) which clarifies and refines the law that had evolved following Re Leisureworld. This Board did not have an opportunity, in Re Cherry or in Re Seager, to consider the ramifications of this refined interpretation of s. 48(16) on the language in the collective agreement between these parties. In the circumstances, it is incumbent upon me to do so. I agree with union counsel that the Blake principle does not prevent this Board from considering a matter that has not been previously considered and decided by the Board. See, Re Duffy, 2007-2737 etc. (Keller).

11The appropriate starting point for that consideration is Re Ajax Precision (supra). At paragraphs 3-5, arbitrator Shime discussed the applicable collective agreement provisions and facts as follows:

3. Since this was a discharge case, the grievance procedure commenced at Step 2 of the grievance procedure pursuant to Article 10.02. Under Article 9.04 of the grievance procedure a Step 2 meeting was held and the Company replied to the Union within five (5) working days of the meeting and accordingly complied with the provisions of the grievance procedure.

4. Step 3 of the grievance procedure provides that “the party having carriage of the grievance may request arbitration of the grievance by giving notice in writing to the other party within fifteen (15) working days from the delivery of the decision at Step #2”. The grievance was denied at Step 2 on May 27th, 1999, and arbitration was requested by a letter to the Company on July 1st, 1999, which was 41 calendar days and 25 working days after the grievance had been denied by the Company at Step 2. This notice was outside the prescribed time limits.

5. Article 9.09 provides that if the time limits are not followed the matter shall be deemed to have been abandoned and both parties are in agreement, that by deeming the matter to have been abandoned, the parties have rendered the time limits to be mandatory. Accordingly, the only recourse for the Union to extend the time limits is the Labour Relations Act, 1995, S.O. 1995, c.1, Sch. A, Section 48(16). . . .

Following a review of the Divisional Court and Court of Appeal decisions in Leisureworld, at paragraph 10 arbitrator Shime wrote:

10. Based on the particular language of that Collective Agreement and the decision of the majority of the Board of Arbitration, both the Divisional Court and the Court of Appeal, in the Leisureworld Nursing Homes case, found that the referral to arbitration was part of the arbitration procedure and the board of arbitration did not have jurisdiction to extend the time limits. However, that decision of the Court, in my view, does not stand for the proposition that the reference to arbitration in every collective agreement is part of the arbitration procedure. Each collective agreement must be considered and a determination made based on the particular language and construction of the agreement.

Then at paragraphs 11-15, the arbitrator observed as follows about the collective agreement before him:

11. In my view, the construction of the instant Collective Agreement differs markedly from the Collective Agreement in the Leisureworld case. First, and most prominently, as argued by the Union, Article 9.01 provides in part:

9.01 Whenever the term “grievance procedure” is used in this Agreement it shall be considered as including the arbitration procedure.

12. The parties have in effect deemed the arbitration procedure to be part of the grievance procedure and accordingly, if this Collective Agreement is read in light of the statute then a board of arbitration has the power to extend the time limits in the arbitration procedure simply because it is part of and falls under the umbrella of the grievance procedure as determined and as deemed by the parties.

13. Second, this Collective Agreement is constructed differently from the Collective Agreement in the Leisureworld Nursing Homes case, because the request for arbitration is part of step 3 in the grievance procedure. Article 9.04 of the grievance procedure provides that the employees’ written grievance shall be processed as follows: and then sets out Step1, Step 2 and Step 3. Thus Step 3 and the included request for arbitration is part of the processing of the grievance referred to in Article 9.04. There is not such a clear demarcation between the grievance and arbitration procedures in this agreement as there was in the Leisureworld Nursing Homes case.

14. Also, the reference to arbitration is interwoven with the grievance procedure in this Collective Agreement and has certain ramifications within the grievance procedure. Under Step 3 if a request for arbitration is not given within the fifteen working day period, the decision at Step 2 is final and binding upon both parties. The failure to request arbitration under Step 3 has the effect of confirming the decision given at Step 2 of the grievance procedure. A decision that is final and binding may have important future implications for the parties in the event that a similar matter may arise. In particular, Article 9.07 has the effect of finalizing a decision in Step 2 of the grievance procedure and ousting any further grievance about the matter in dispute. To repeat, that Article provides as follows:

9.07 A grievance which has been disposed of pursuant to the grievance provisions of this agreement shall not again be made the subject matter of a grievance.

15. Thus there are consequences within the grievance procedure, and to the future relations between the parties, where the matter is not referred to arbitration, which, in my view, make the reference to arbitration a vital part of the grievance procedure because, as well as referring the matter to arbitration, the referral has an impact on the grievance procedure which prevents issues raised in the grievance and the grievance procedure from both being finalized and also being ousted in a future grievance. The referral to arbitration in this agreement is inextricably interwoven with the grievance procedure and is therefore part of the grievance procedure. In these circumstances and based on the particular construction of this agreement, a board of arbitration is not precluded from extending the time limits for arbitration.

12In James Bay General Hospital, (2003) 2003 CanLII 89637 (ON LA), 126 L.A.C. (4th) 1, arbitrator Devlin was faced with the following collective agreement language:

Article 7 – Grievance and Arbitration Procedure

7.03 Step 1

An employee may submit a grievance in writing to the Director or designate within fourteen calendar days from the date the grievor became aware, or ought to have reasonable (sic) become aware of the circumstances giving rise to the grievance. The grievance shall clearly state the nature of the grievance, the provisions of the Collective Agreement alleged to have been violated, the remedy sought, and shall be signed by an authorized Union representative. Where requested by the grievor at the time of the submission of the grievance, a meeting shall be held between the Director and the grievor no later than seven calendar days after such request. The grievor may be accompanied by a steward, if the employee wishes. Within nine calendar days of receipt of the grievance, or the holding of the meeting, the Director or designate shall reply in writing.

7.04 Step 2

Failing satisfactory settlement at Step 1, the grievor may submit the grievance to the Executive Director or his designate within fourteen calendar days from the date of receipt of the reply to the grievance from Step 1. Where requested by the grievor at the time of the submission of the grievance, a meeting shall be held between the Executive Director and the grievor no later than seven calendar days after such request. The grievor may be accompanied by a union representative, if the employee wishes. Within nine calendar days of receipt of the grievance or the holding of the meeting, the Executive Director or designate shall reply in writing.

7.05 Step 3

Failing satisfactory settlement at Step 2, the grievance may be referred to arbitration as hereinafter set out, provided such referral is made within 21 calendar days of the answer at Step 2. Where such referral is not made within the time limits, it shall be deemed to be abandoned.

The foregoing provisions were followed by a heading “Arbitration Procedure”, which outlined the procedures to be followed after the referral to arbitration.

13Arbitrator Devlin cited with approval the reasoning in Re Ajax Precision, particularly the finding that the Divisional Court decision in Re Leisureworld “does not stand for the proposition that an arbitrator is without jurisdiction to grant an extension of time for the referral to arbitration, regardless of the provisions of the collective agreement.” In concluding that the particular language gave her that jurisdiction, arbitrator Devlin reasoned at p. 13 as follows:

There is admittedly no provision in the collective agreement in this case similar to that in the agreement before Arbitrator Shime, specifying that the term “grievance procedure” includes the arbitration procedure. Nevertheless, in the collective agreement before me, step 3 of the grievance procedure constitutes the referral to arbitration. Moreover, although the form of the referral to arbitration is dealt with in Article 7.11, the time limit for that referral, in respect of which the Alliance seeks an extension in this case, clearly appears as step 3 of the grievance procedure.

Accordingly, as section 48(16) of the Labour Relations Act provides that an Arbitrator “may extend the time for the taking of any step in the grievance procedure”, I find that under this collective agreement, I have jurisdiction to extend the time limit as step 3 of the grievance procedure, which is the referral to arbitration.

14In dismissing the application for judicial review of arbitrator Devlin’s award, the unanimous Divisional Court concluded at paragraph 14-18 as follows:

14. We conclude that the arbitrator in the facts of this case was correct that she had jurisdiction pursuant to s. 48(16) of the Labour Relations Act to extend the time in Step 3 of the grievance procedure to refer the matter to arbitration. Section 48(16) provides the arbitrator with the discretion to “extend the time for the taking of any step in the grievance procedure under a collective agreement”. There were reasonable grounds for the extension, and the Hospital will not be substantially prejudiced by this extension.

15. If the referral to arbitration is by the terms of the collective agreement specifically included as a “step” in, and part of the grievance procedure, then there is jurisdiction for the arbitrator to extend time pursuant to s. 48(16) of the Labour Relations Act. If, however, by the terms of the collective agreement, the grievance procedure is distinct from the referral to arbitration, then no such jurisdiction exists.

16. In this case, the defined grievance procedures and referral to arbitration, by the terms of the collective agreement, are inextricably intertwined. It may well be that parties structured their collective agreement as they did to avoid the strict application of the Leisureworld ruling. We note that the governing collective agreement in this case came into effect in March 2000, after the Leisureworld decision.

17. Although there is a qualitative difference between grievance and arbitration, in this case, the parties, by the terms of the collective agreement, agreed to a grievance procedure which specifically included the referral to arbitration in Step 3. Leisureworld is distinguishable, and the reasoning of Arbitrator Shime in Ajax Precision is helpful.

18. For these reasons, the appeal is dismissed.

15The next task in the present case is to consider the implications of the court’s decision in Re James Bay General Hospital, in light of the particular collective agreement language before me. Counsel for the employer took the position that the only circumstance in which the Board may take jurisdiction pursuant to Re James General Bay Hospital, is where the collective agreement sets out referral to arbitration “as a separate enumerated step in the grievance procedure”. He relied on Re Columbian Chemicals (supra), Re Hotel Dieu Hospital (supra) and Re Surex Community Services (supra), all of which post date the Divisional Court decision in James Bay General Hospital, as supporting that proposition.

16In Re Columbian Chemicals, arbitrator Kaplan, in upholding the employer’s objection to jurisdiction, wrote as follows at paragraphs 20-21:

20. In the collective agreement before us, it is my view that there is a clear delineation between the grievance procedure and the arbitration process, notwithstanding the fact that the two former provisions were merged into one, and the heading of the Arbitration provision was removed. In the instant collective agreement, the grievance procedure involves a number of clearly set-out steps. The arbitration process, while contained within the same provision, involves none of those steps but, rather, a specific and separate referral to arbitration within negotiated mandatory time lines. As noted in Kingston Whig-Standard v. Communication Workers of America, Local 30204 [2002] OLAAA No. 39 (Simmons), “the mere co-mingling of two procedures is not sufficient to form one procedure” (at para. 17). Moreover, in the judicial review of the James Bay General Hospital award, the Divisional Court stated:

If the referral to arbitration is by the terms of the collective agreement specifically included as a “step” in, and part of the grievance procedure, then there is jurisdiction for the arbitrator to extend time pursuant to s. 48(16) of the Labour Relation Act, 1995. If, however, by the terms of the collective agreement, the grievance procedure is distinct from the referral to arbitration, then no such jurisdiction exists” (126 L.A.C. (4th) Div. Ct. 12 at para. 15).

21. In this case, as noted above, the grievance procedure includes steps. There are no steps in the arbitration referral, and the two processes, by any fair interpretation, must be considered separate and apart.

17In Re Hotel Dieu Hospital (supra), arbitrator Leighton reviewed the relevant jurisprudence, including James Bay General Hospital, and wrote as follows:

21. While the Divisional Court’s decision in James Bay General Hospital seems to suggest that if language providing the timeline for referral to arbitration is found under the grievance procedure article then arbitrators do have the jurisdiction under Section 48(16) of the Act to extend the time limits, it is hard to reconcile this with Leisureworld. The Divisional Court in Leisureworld held:

Although the referral to arbitration is found in the grievance procedure in this collective agreement, its placement in that article following what the parties have titled the steps of the grievance procedure reinforces the plain meaning of the words that the referral to arbitration is not part of the grievance procedure but rather is the initial step in the arbitration procedure.

22. Although the court in James Bay General distinguished Leisureworld, it would seem that the only real difference in the collective agreements of Leisureworld and James Bay General Hospital is that in James Bay General Hospital the referral to arbitration was found specifically as part of Step 3 of the grievance procedure, whereas in Leisureworld and in the case before me, it is not found in Step 3. In Leisureworld and the collective agreement before me the grievance procedure sets out Step 1 and Step 2, and then in a separate provision but still under the grievance procedure article, states the timelines for the referral to arbitration. The result of these two divergent lines of cases means that if the subheading

Step 3 is included before the article for referral to arbitration, then arbitrators have the jurisdiction to extend the time limit, if appropriate. But without it, we remain bound by the higher precedent that has denied our discretion.

24. Having carefully considered the submissions of the parties, I have decided that the language in the collective agreement before me is substantially the same as the language before the courts in Leisureworld. Thus I am bound by it. The employer’s objection must be upheld, and the grievance dismissed.

18In Re Surex Community Services, (supra) arbitrator Stephens concluded as follows at paragraphs 14-15:

14. Having placed the cases in context, the question becomes how to apply them to the collective agreement language before me. In my view, the time limits set out in the collective agreement are mandatory, and indeed, the union did not contest this fact. I also note the structure of the language before me is almost identical to that in re Leisureworld, in that the time limit for referral to arbitration is found in the article entitled “Grievance Procedure” but it is contained in a separate sub-section of the article. There is no clear statement that the arbitration procedure is part of the grievance procedure, as was present in Re Ajax Precision, nor is the time limit for referral to arbitration included as part of any of the enumerated steps in the grievance procedure, as was the case in Re James Bay General Hospital. I can find no other factors in the collective agreement before me that would distinguish the language in Art. 9.02 from the language considered by the Divisional Court and the Court of Appeal in re Leisureworld.

15. After considering all of the above, I find I am bound by the court decisions in re Leisureworld. I am forced to conclude that the time limit in Article 9.02 is part of the arbitration procedure, and that I have no jurisdiction to extend such time limits. As a result, the grievance must be dismissed.

19Having carefully reviewed arbitrator Devlin’s award, as well as the Divisional Court decision in James Bay General Hospital, I do not agree that the current law requires that the collective agreement provisions must be structured in a particular form, for jurisdiction to exist to extend time for referral to arbitration. In my view, the following propositions emerge from the Ajax Precision and James Bay General Hospital arbitration and court decisions. First, the court decision in Leisureworld does not stand for the proposition that s. 48(16) of the Labour Relations Act does not confer jurisdiction to extend time limits for referral to arbitration regardless of the collective agreement language. To the extent that any awards had interpreted Leisureworld as standing for such a proposition, they no longer constitute good law. Second, and related to the first proposition above, the existence or absence of jurisdiction depends on the language and construction of the particular collective agreement. As arbitrator Shime stated in Ajax Precision at para.10, “Each collective agreement must be considered and a determination made based on the particular language and construction of the agreement”. Third, and most important, the test is whether or not, referral to arbitration, having regard to the language and structure of the particular collective agreement, forms a part of the grievance procedure, and not part of a separate procedure outside the grievance procedure.

20Surely, where a collective agreement explicitly states that the arbitration procedure is part of the grievance procedure (as in Re Ajax Precision), or where referral to arbitration is explicitly made a step in the grievance procedure (as in Re Ajax Precision and Re James Bay General Hospital) the application of the test becomes easier. In those cases, the arbitrators relied on the language before them, as evidence of the intention of the parties to treat referral to arbitration as part of the grievance procedure. However, there is nothing in the authorities to the effect that that is the only language that could lead to a finding of jurisdiction.

21In Re Ajax Precision the arbitrator’s ultimate finding in paragraph 15, preceding the denial of the objection to jurisdiction, is to the effect that “The referral to arbitration in this agreement is inextricably interwoven with the grievance procedure and is therefore part of the grievance procedure. In these circumstances and based on the particular construction of this agreement, a board of arbitration is not precluded from extending the time limits for arbitration”.

22In Re James Bay General Hospital, the Divisional Court wrote: “If the referral to arbitration is by the terms of the collective agreement specifically included as a “step” in, and part of the grievance procedure, then there is jurisdiction for the arbitrator to extend time pursuant to s. 48(16) of the Labour Relations Act. If, however, by the terms of the terms of the collective agreement, the grievance procedure is distinct from the referral to arbitration, then no such jurisdiction exists”. (Paragraph 15). The inclusion of referral to arbitration as a “step” in the grievance procedure in James Bay General Hospital was not by itself a precondition for the assertion of jurisdiction. It was the evidence or reason which led to the finding that in that agreement referral to arbitration was part of the grievance procedure.

23The three arbitration awards which post date Re James Bay General Hospital are not inconsistent with my finding that the test is a broad one, that is, whether or not referral to arbitration is part of the grievance procedure or distinct from it. The arbitrators did contrast the language before them, with the language in decisions where jurisdiction was found to exist. They do refer to the absence of referral to arbitration as a step in the grievance procedure in the agreements before them. However, the reason for upholding the objection to jurisdiction in each case was the finding that in the collective agreements before them, referral to arbitration was not part of the grievance procedure. Thus, in Re Columbian Chemicals (supra) it was found that “In the collective agreement before us, it is my view that there is a clear delineation between the grievance procedure and the arbitration process …”. (Paragraph 20) In Re Hotel Dieu Hospital (supra) at paragraph 22 the arbitrator concluded “In Leisureworld and the collective agreement before me the grievance procedure sets out step 1 and step 2, and then in a separate provision but still under the grievance procedure article, states the timeliness for the referral to arbitration”. In Re Surex Community Services, (supra), after contrasting the language before him with the language in Re Ajax Precision and Re James Bay General Hospital, the arbitrator concluded at paragraph 15, that the provision relating to referral to arbitration “is part of the arbitration procedure and I have no jurisdiction to extend such time limits”.

24In summary, I conclude that there is no specific language or structure that must be utilized as a pre-condition of granting an arbitrator jurisdiction to extend time limits for referral to arbitration under s. 48(16). It is incumbent on an arbitrator to consider the language and the structure of the particular collective agreement before him/her, and determine whether the parties had included referral to arbitration as a part of the grievance procedure. Where the finding is that the parties had done that, jurisdiction would exist under s. 48(16) to extend time for referral to arbitration. However, where the language and structure is such that referral to arbitration is separate and distinct from the grievance procedure, no jurisdiction to extend time exists. Thus referring to the court decision in James Bay General Hospital, the authors of Canadian Labour Arbitration (4th Ed) Brown and Beatty, at 2.3142 note that “… some arbitrators have distinguished between agreements where the referral to arbitration is part of the grievance procedure and those where it is part of the arbitration procedure, and the validity of this latter distinction has now been affirmed by the Ontario Divisional Court”. The test is whether the referral to arbitration has been made part of the grievance procedure. Inclusion of referral to arbitration as a step in the grievance procedure is a clear method of doing so. However, it is not the only method. The language and the structure of the particular collective agreement must be examined in order to determine whether or not referral to arbitration is distinct from or part of the grievance procedure.

25In this regard, I note the recognition by the court in James Bay General Hospital at para. 17 that “there is a qualitative difference between grievance and arbitration”. Despite that inherent qualitative difference between the processes, it is open to the parties, if they so wish, to combine them. However, there must be clear evidence that the parties did intend that result. There must be a clear indication in the language and structure of a collective agreement that the parties intended referral to arbitration to be a part of the grievance procedure. In Ajax Precision and James Bay General Hospital, that kind of language and structure were found to exist. In Columbian Chemical, Hotel Dieu Hospital and Surex Community Services, clear indication of intention to make referral to arbitration part of the grievance procedure was found to be lacking.

26Turning then to the collective agreement before me, the issue is whether it could reasonably be concluded, from its language and structure, that referral to arbitration is a part of the grievance procedure itself, or whether it is distinct from the grievance procedure.

27Upon a careful review, I am led to the conclusion that in this collective agreement, referral to arbitration is not made part of the grievance procedure. Referral to arbitration is dealt with in article 22.4, a sub-article of article 22, which appears under the heading, “Grievance Procedure”. Article 22.2.1 deals with “Stage One” which involves discussion of the employee’s complaint with the immediate supervisor within a specified time period. If the complaint is not settled at stage one, article 22.2.2 provides for the complaint to proceed to stage two.

28The heading “Stage Two” appears after article 22.2.2. Then article 22.3.1 provides for the filing of a written grievance through the union with the senior human resources representative or designee. That initiates stage two. Under article 22.3.2, management is required to meet with the employee and give its decision within specified time limits.

29Article 22.4 is the referral to arbitration provision. A grievance, by the terms of article 22.4, may be referred to arbitration “If the grievor is not satisfied with the decision of the senior human resources representative or his or her designee, or if he or she does not receive the decision within the specified time” at stage two. In short, where no settlement results at stage two, the grievance may be referred to arbitration under article 22.4.

30In my opinion, this language does not integrate referral to arbitration as part of the grievance procedure. Rather, the language is comparable to the language in Re Columbian Chemicals (supra), (where there was provision for referral to arbitration “If the step 3 response is unsatisfactory”); Re Hotel Dieu Hospital, (supra), (where there was provision for referral to arbitration, “Failing settlement under the foregoing procedure”); and Re Surex Community Services (supra) (where there was provision for referral to arbitration, “Failing settlement under the foregoing procedure”). In those collective agreements, as well as the collective agreement in the present case, it is contemplated that where one procedure (i.e. the grievance procedure) does not result in a settlement, it may be proceed to the arbitration process. There is a separation or delineation between the two processes, so that it could not be said that in this collective agreement “the referral to arbitration is inextricably interwoven with the grievance procedure, and is therefore a part of the grievance procedure”, as in Re Ajax Precision.

31Union counsel relied on the fact that article 22, under the heading “Grievance Procedure” covers a number of procedures including the grievance procedure and arbitration procedure. He referred me to article 22.14 which provides:

22.14 GENERAL

22.14.1 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.

22.14.2 In Article 22, “days” shall include all days exclusive of Saturdays, Sundays and designated holidays.

22.14.3 The time limits contained in Article 22 may be extended by agreement of the parties in writing.

22.14.4 The parties agree that principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member or members, or the Union itself, and full disclosure of facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution processes.

22.14.5 The parties agree that at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure.

22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreements.

32Counsel pointed out that article 22.14 contains general provisions, including definitions and disclosure obligations, which apply commonly to both the grievance and arbitration procedures. Union counsel further referred me to article 22.18 headed “Interest”. Relying on case law, he pointed out that the method of calculating interest specified in article 22.18.1 applies to decisions rendered during the grievance procedure, as well as at arbitration. He suggested that the existence of common rules that apply to both processes is an indication that the referral to arbitration was intended to be an integral part of the grievance procedure.

33There is no question that article 22 under the heading “Grievance Procedure”, in 18 sub-articles, deals with much more than the grievance procedure itself. The topics covered under article 22 include the two stages of the grievance procedure, the referral to arbitration and special provisions that apply to different types of grievances. In fact, article 22 also includes provisions which confer substantial rights. Article 22.10 contains the right to freedom from sexual harassment, and article 22.15 is the “sunset clause” providing for the removal of the disciplinary record within specified time limits. Article 22.16 also provides the rules that govern the mediation/arbitration procedure, with the intervention of a mediator/arbitrator.

34Is it reasonable to conclude that the inclusion of all of the foregoing topics in a single article under the heading “Grievance Procedure”, makes all of those processes a part of the grievance procedure? I do not think so. It has been held that “the mere co-mingling of the two procedures is not sufficient to form one procedure”. (Re Kingston Whig-Standard, (supra), at para 17). While referral to arbitration is contained in the same provision as the grievance procedure, and appears under the heading “Grievance Procedure”, there is a clear delineation between the two processes. The arbitration process begins with the referral to arbitration upon the exhaustion of the grievance procedure without a settlement. As in Re Columbian Chemicals (supra), Re Hotel Dieu Hospital, (supra), and Re Surex Community Services (supra), here also the arbitration process begins, when the grievance procedure ends with no settlement. Despite the intermingling of the two processes in a single article under a common heading, and despite the fact that article 22 deals with both the grievance and arbitration processes, (in addition to a variety of other processes, and substantive rights), the two processes are distinct.

35For those reasons, I conclude that the rationale in James Bay General Hospital does not apply so as to confer jurisdiction on this Board to extend time for referral to arbitration in the instant collective agreement. Accordingly the employer’s objection to the Board’s jurisdiction to extend the time limits in article 22.4 is upheld.

36As requested by the parties, I remain seized with the grievance to deal with any outstanding matters over which the Board continues to have jurisdiction.