GSB#2007-2956

UNION#2007-0430-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Flynn)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Counsel

HEARING

January 5, 6, 7, 11, 2010.

Decision

1The grievor, Mr. Kim Flynn, filed a grievance dated December 12, 2007 alleging that the employer violated article 9.1 of the collective agreement and the Occupational Health and Safety Act.

2The union contends that the employer, through its conduct, caused or significantly contributed to the grievor’s alcoholism and major depression. The remedies sought include a declaration, compensation for loss of earnings, and damages for pain and suffering. The alleged employer conduct, which the union relies on to support the instant grievance may be briefly summarized as follows:

• 1983: The grievor’s probation period was longer than his co-workers and no explanation was provided for this.

• October 1999 and January 2000: A supervisor belittled the grievor by making accusations and yelling at him in the presence of co-workers, resulting in the grievor feeling embarrassed and humiliated.

• The grievor was passed over for many health and safety positions, some of which were awarded to family and friends of the managers. These allegations go back to 1992, 1996, 2002 and 2003.

• Despite the grievor’s expression of interest, a number of positions were filled with friends and relatives to positions without running a formal competition. These allegations relate back to 1999, 2000 and 2003.

• The grievor missed work on numerous days due to his depression and alcohol abuse. Even though the grievor submitted doctor’s notes, his pay was suspended for many of these absences. In some cases, he was disciplined also. These events occurred in 2005.

3It is common ground that the most recent conduct attributed to the employer occurred on July 27, 2005. The grievance was filed on December 12, 2007. Therefore, even on the basis that the clock did not start until July 27, 2005 the grievance was filed well over two years beyond the 30 day time limit stipulated under article 22.2.1 of the collective agreement for filing of grievances.

4As a preliminary matter, the employer moved to the effect that in the circumstances the grievance is untimely, and therefore inarbitrable. The union concedes that the grievance was filed outside the time-limits, but seeks an extension of time-limits under s. 48(16) of the Labour Relations Act. The employer opposed an extension of time.

That provision reads:

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 the 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.

5The union takes the position that until late December 2007, the grievor lacked the mental capacity required to be able to file this grievance in a timely manner. The focus of this proceeding was on the grievor’s mental capacity to file the grievance between June 2005, when the last of the employer conduct allegedly occurred, and December 12, 2007 when the grievance was in fact filed. The parties filed a “Proposed partial agreed statement of facts”, and agreed that I could rely on the facts set out therein. In addition, the union adduced viva voce testimony through the grievor, a psychiatrist specialist Dr. Amarendra Singhe and a co-worker and friend of the grievor, Mr. John Grifferty. The employer called no witnesses.

6In my decision dated July 3, 2009 at paragraphs 15-17, I reviewed the considerations involved in deciding whether to exercise the discretion under s. 48(16) to extend time as follows:

15In Re Becker Milk, , 19 L.A.C. (2nd) 217 (Burkett) at pp. 220-221, the arbitrator discussed the considerations involved in deciding whether to extend time-limits under S. 48(16), as follows:

The exercise of the equitable discretion vested in an arbitrator under s. 37(5a) [now 48(16)] of the Act requires a consideration of at least three factors. These are: (i) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance. If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time-limits. If however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time-limits.

16S. 48(16) requires that the arbitrator be satisfied that there are “reasonable grounds for the extension” of time-limits, and that the opposite party will not be substantially prejudiced by the extension. The existence of reasonable grounds cannot be determined in isolation. It must include a consideration of a range of factors depending on the facts of the particular case. It involves a balancing of the interests of the two parties, one of which is the potential prejudice. Thus, at p. 221, arbitrator Burkett wrote:

The term “reasonable grounds for the extension” … is not synonymous with the reasonableness of the excuse advanced by the offending party. Having regard to the purpose of the section the term carries a broader signification which requires the arbitrator to weigh a number of factors, including but not necessarily restricted to those which have been set out above.

17Some of the factors commonly considered by arbitrators were set out by arbitrator Schiff in Re Greater Niagara General Hospital, , 1 L.A.C. (3d) 1, as follows:

1. The nature of the grievance

2. Whether the delay occurred in initially launching the grievance or at some later stage.

3. Whether the grievor was responsible for the delay.

4. The reasons for the delay.

5. The length of the delay.

6. Whether the employer could reasonably have assumed the grievance had been abandoned.

The foregoing list was not intended to be exhaustive. In each case, there may be peculiar circumstances, which may have a bearing on whether reasonable grounds for extension exist.

7From a review of the case law, I draw the following principles. The grievor’s reason or explanation for the delay is only one of the factors, albeit a very significant one, to be considered in determining whether “reasonable grounds” exist for extension of time. Even if there is no reasonable reason or explanation, that does not necessarily preclude an extension, if other considerations such as the length of the delay and the nature of the grievance heavily favour the grievor. Where a grievor offers a reasonable reason or explanation, however, an arbitrator may decide to extend time even where the other factors are not so strongly in favour of the grievor.

8If it is established that the grievor lacked the mental capacity to file the grievance until December of 2007 due to his illness, a reasonable exercise of discretion would favour a finding that reasonable grounds exist for extension, unless a consideration of the other factors extremely heavily weigh against the grievor. For the present purposes, it suffices to note that the employer did not assert any specific prejudice as a result of the delay in the filing of the instant grievance, beyond the prejudice inherently associated with delay generally.

9Dr. Singhe has treated the grievor since May 2005. He is certified as a specialist in psychiatry. Dr. Singhe has researched, taught, and published extensively in his specialty, as an academic at Queen’s University in Kingston since 2000, and prior to that in the United Kingdom. In addition, for over 25 years he has carried on a clinical practice, primarily in treating mood disorders. His impressive credentials and achievements are set out in a 37 page Curriculum Vitae. It suffices to note that his expertise to testify about the nature and symptoms generally of alcohol abuse and major depression, and about the grievor’s mental state in the relevant period is beyond question, and the employer acknowledged that.

10Union counsel by letter dated July 16, 2009, requested a report from Dr. Singhe as follows in preparation for this proceeding:

1. A summary of your qualifications and experience (if it is more convenient please simply attach your c.v.);

2. A description of your history with Mr. Flynn: when you first saw him, the extent to which you have seen him as a patient and an outline of the occasions on which you have seen him as a patient;

3. A reasonably detailed description of his psychiatric, psychological and medical condition throughout the period he has been your patient, together with the prescribed treatment and Mr. Flynn’s co-operation and response to the treatment.

4. In his grievance Mr. Flynn alleges that his Employer’s conduct caused or significantly contributed to the condition that led to him having to take sick leave in 2005 in that the Employer failed to make reasonable provision for his health. Mr. Flynn had experience in filing grievances in the past. By December 2007 he was able to formulate sufficient understanding of his situation and his view as to the Employer’s role that he was able to file the grievance. From your observation and with your knowledge of his condition please offer your opinion as to the point in the period from June, 2005 to December 2007, he had the capacity to formulate an understanding of the issues and the capacity to take the necessary steps to file a grievance.

5. Based on the information you were given, please describe your understanding of his psychiatric, psychological and medical condition prior to June 2005 as it pertained to the issues in this matter and in particular on his capacity to understand the issues and to take the necessary steps to deal with them and to make decisions relating thereto.

11Dr. Singhe’s report dated August 19, 2009, included the following:

In May 2005, Mr. Flynn was suffering from the combined disorders of Alcohol Abuse and Major Depression. His symptoms were heavy alcohol abuse, disturbed sleep, depression, poor appetite. He had also seen his family physician for treatment of Major Depression without any improvement.

In 1983 he joined the Ministry of Government Services in the Mail Department and in 1987 he was an Occupational Health and Safety Instructor.

Due to continued disorders of Alcohol Abuse and Major Depression he was put on sick leave in July 2005. His history of Alcohol Abuse is of approximately 20 years and started as social. It then became binge drinking leading to regular alcohol abuse.

In 2005 he had been drinking heavily. As a matter of fact, at the time of his first visit on May 27, 2005, we found a documented visit to the Emergency Department at Hotel Dieu Hospital for treatment of alcohol withdrawal symptoms including the serious side effect of seizure. His family history also showed that he has a few relatives who also have an alcohol problem.

Further treatment recommendations for him were for the treatment of Major Depression and of Alcohol Abuse. For Major Depression he was started on a combined regime of pharmacotherapy (Effexor XR 225 mg am) and cognitive psychotherapy. For Alcohol Abuse treatment I recommended that he attend an alcohol rehabilitation centre and also attend Alcoholics Anonymous meetings. He went to North Bay Hospital Rehabilitation ward on February 2, 2006 and completed the course and was discharged on March 6, 2006.

Mr. Kim Flynn has been my patient from May 27, 2005 to the present time and continues to receive treatment for Major Depression. As far as Alcohol Abuse treatment is concerned, besides seeing me, he attends the full program of Alcoholics Anonymous and has been free of alcohol intake or abuse. He has, during the above period, seen me regularly and most visits have been at a one month interval. His diagnosis during this period is:

Axis I - Major Depression – recurrent and chronic with Dysthymia and

Alcohol Abuse

Axis II - nil

Axis III - nil

Axis IV - Psychosocial job stress

GAF - varied but at present 60

During the period he has been my patient, his compliance of treatment has been very good and he has been very cooperative. The response of treatment in Alcohol Abuse has been very satisfactory but Major Depression, which has become chronic

and has a component of dysthymia, has shown a fluctuating response. At the moment, his improvement in his Major Depression is in a satisfactory state.

During psychotherapeutic sessions, Mr. Flynn has discussed with me his treatment by his employer which not only might have played in his Depressive Disorder and Alcohol Abuse but created a lack of self-confidence for going back to his job. According to him, a Human Resources official mistreated him and he was getting flashbacks and cognitive psychotherapy was utilized to help him to come out from this trauma. In my letter to Mr. Flynn’s insurance company dated October 19, 2007, I have informed their representative (Ms. Sandra Correia) of these difficulties and set backs.

To answer your fourth question, during the period of May 2005 to the end of 2007 Mr. Kim Flynn was under my treatment. I am of the opinion that during this period his suffering was marked and severe enough to make him incapable to understand these issues in full and had no capacity to take the necessary steps to file the grievance. As I said earlier, I shared the above concern with Mr. Flynn’s insurance company through my letter dated October 19, 2007 and informed them that he had not fully recovered though improving and was still disabled to go back to work in 2007. (emphasis added)

To answer your last question, Mr. Flynn has been suffering from the dual disorder of Major Depression and Alcohol Abuse prior to 2005 and dual disorder will cause psychopathologies in him such as deficit in mental function, cognition, affect and memory which will make him incapable to either understand the issues or to take the necessary steps to deal with them and to make a decision relating thereto.

In spite of giving reasons for my opinion above, I am summarizing the reason of my opinion in this last paragraph. Mr. Kim Flynn has suffered from Alcohol Abuse and Major Depression which has caused deficits in his mental function, in cognition, in memory and in his affect and the combined deficits in turn made him unable to have the capacity to understand the issues, to take the necessary steps to deal with these issues and finally to make a decision relating thereto.

12Dr. Singhe testified at length, referring to authoritative publications and papers, about the nature of alcohol abuse and major depression, and the symptoms and effect on a person suffering from those diseases. He testified that while he started treating the grievor only in May of 2005, a review of the grievor’s documented medical history indicated he had suffered from the dual disorders for over 20 years. He testified that with treatment there can be complete recovery from organ damage, such as liver damage, resulting from alcohol abuse. However, prolonged alcohol abuse also results in damage to brain cells. It was Dr. Singhe’s opinion, that despite the best treatment, damaged brain cells never recover one hundred percent. Some degree of residual damage always remains.

13Dr. Singhe testified that alcohol abuse and major depression result in physical, mental and social consequences. He stated that when the grievor first came to him in May 2005, he “showed signs of major depression, anxiety, impairment in cognition, impaired memory with memory lapses, a history of alcoholic blackouts, inability to cope, impaired judgement, lack of temper control, impaired reaction time and reduced functional mental capacity, lack of motivation and social isolation.” Dr. Singhe stated that alcoholism increases depression.

14Dr. Singhe testified that the grievor exhibited “binge behaviour”, which means that he had periods of memory lapses. He stated that the grievor had no dementia. Therefore, his loss of memory was not on-going or permanent. On many occasions, Dr. Singhe testified that the grievor’s memory “comes and goes”. At times the grievor had a good memory and was able to act in his interest and to take care of himself. However, his memory was not continuous. As he put it, “the next week or even the next day, he may not have a good memory”. The gist of Dr. Singhe’s opinion was that due to years of alcohol abuse and major depression the grievor’s memory and mental capacity would never be restored one hundred percent. The goal of treatment is to provide continuity of the optimum capacity he is able to achieve without fluctuation and lapses.

15Dr. Singhe said that between 2005 and 2007, the grievor’s improvement was slow, erratic and fluctuating. The slightest stress would bring his mood down. According to Dr. Singhe this fluctuation in mental function reduced the grievor’s capacity to judge or function. According to Dr. Singhe, after 2007 “the fluctuation became less and less and he became more stable”. However, Dr. Singhe opined that stability in the grievor’s mood and mental function was not achieved until mid-2008. Dr. Singhe stressed, however, that the grievor’s mental functionality was still impaired. That is the reason why he was still treating the grievor with a combined regime of cognitive psychotherapy and pharmacotherapy.

16Union counsel asked Dr. Singhe for his opinion as to whether there was any point of time between June 2005 and December 2007 when the grievor would have had the capacity to understand the issues involved in the instant grievance and to decide what to do about it. Dr. Singhe did not directly respond to the question. He replied that since treatment started in May 2005, the grievor’s improvement was “step by step”. By early 2007, he had improved enough to

realize that he was ill, and that he understood what he had to do to improve his health. His view was that it was only by the end of 2007 that the grievor’s mental function improved enough for him to be able to understand what he had to do to improve his financial and employment situation.

17Union counsel put to Dr. Singhe that in December 2005 the grievor had filed a grievance when the employer cut off his pay and benefits, and asked how he was able to do that, given Dr. Singhe’s opinion that the grievor had no mental capacity to file the present grievance until late 2007. Dr. Singhe replied that he was not aware that the grievor had filed a grievance in December 2005. He said that in 2005 the grievor was “a really unstable and very sick person”. He surmised, “My clinical sense is that his binge behaviour came out when he heard that his benefits were cut off and he took action”. Dr. Singhe explained that binge behaviour means that when individuals in the grievor’s condition are provoked, they can take steps to deal with the situation. However, that does not, mean that the person has full mental capacity.

18Union counsel again asked Dr. Singhe, “You started treating him in May 2005. You reviewed his history from 2000. Based on all of that, what is your opinion about his capacity to file a grievance like this one?” Dr. Singhe stated that his opinion will be subjective, that based on what he knew, the grievor “had capacity to take action when provoked. He had binge behaviour, patchy behaviour”. When asked on what issues the grievor had capacity to take action when provoked, Dr. Singhe replied “On anything, if he feels someone is trying to harm him”.

19In cross-examination, Dr. Singhe agreed that since he started treatment in May 2005, the grievor had made “considerable progress”. When employer counsel suggested that from 2005 to present there has been no marked deterioration, Dr. Singhe replied, “But improvement was not in a straight line. It fluctuates” and added that “If anything goes wrong in his life, his mood goes down”. Dr. Singhe agreed that since May 2005 he had no concerns that caused him to recommend that the grievor’s driving licence be suspended. Nor was there any health issue diagnosed that would have affected the grievor’s ability to manage his financial affairs. Dr. Singhe also agreed that between 2005 to 2007 the grievor was able to take care of daily life activities such as dressing, toileting, cleaning and feeding.

20Employer counsel put to Dr. Singhe a letter dated March 6, 2007 which the grievor had hand-written and sent to his Manulife case manager. It reads:

I have worked for the Ministry of Transportation for almost a quarter century. I started in the mail room, and to this day I am still in this same entry level position. I have had one 3 month training assignment in all my years of working at the ministry and that was over 15 years ago. There was an opportunity given to me just before I went off sick at a slightly higher level but would be receiving the same pay. This was a complete insult. These practices have been going on for a very long time. There was once when 98% of our entire unit (Licensing & Control) were offered to work overtime on a project called Vehicle Resolve. Only 2 of us out of hundreds of staff were denied to work the overtime because we were told we did not have experience on the Vehicle Registration System, which I did have because the one and only training assignment I have was on the Vehicle Registration System. There was 1200 hours of overtime offered at the hourly rate of approximately $35 hrly. That was an enormous loss to me.

The management has brought their immediate members of their own family as well as their friends, and put in much higher positions that I am in now. This is a gross abuse of their power. They are arrogant and they have stolen opportunity after opportunity from me which has affected my financial well being, self respect and most of all my health! Just before I went off sick, I told my manager and human resources that I wanted to go into a treatment centre. The disease I have is horrifying and for many many weeks it was like a everlasting nightmare and to make things worse my manager cut me off my pay and Benefits after going to them for help. Asking for help at that time was one of the hardest things I have ever had to do and then have my pay and benefits cut off was devastating. I can’t put into words what I went through. Just writing this letter puts me back to place in my mind where I don’t want to go right now. (emphasis added)

21Employer counsel put to Dr. Singhe that the letter shows that the grievor at the time was able to identify the issues he had with the employer, and to articulate to the case manager that the employer’s conduct had affected his health. Dr. Singhe agreed, but added that while at the time the grievor wrote the letter he was aware of the situation, it does not mean that in two weeks or a month he would continue to have that ability, because he was prone to periods of memory lapses.

22Employer counsel put to Dr. Singhe, a Manulife Financial “Agreement regarding CPP/QPP disability and LTIP Benefits” and an “Activities of Daily Living Questionnaire”, which the grievor had completed and signed on August 28, 2007. Dr. Singhe agreed that these documents indicated that at the time he filled them out, the grievor did not have any capacity issues.

23Dr. Singhe agreed that on March 6, 2006 the grievor had successfully completed a month long alcoholism rehabilitation program in North Bay. However, while that would have stabilized the grievor’s alcohol abuse issues, Dr. Singhe reiterated that “that does not mean 100% recovery. It never becomes perfect. If he has lost brain cells after 20 years of alcohol abuse, he will not regain those”.

24Counsel drew Dr. Singhe’s attention to his opinion in the underlined sentence (at para. 20, supra) in his report dated August 19, 2009. Counsel asked what “suffering” was marked and severe enough. Dr. Singhe explained that “there was no continuity in the grievor’s ability to improve. He had periods of memory lapses. There are times when he is good, but not all the time”. Employer counsel asked “Therefore, is it correct that between 2005-2007 there were periods of time when his condition was good so as to allow him to file the grievance and at other times he had no capacity to do that?”. Dr. Singhe’s response was, “Very well said”.

25Dr. Singhe was shown a letter dated January 10, 2006, written on Dr. Singhe’s behalf by his clinical clerk, to the grievor’s family physician. It states that the grievor “displays good insight and judgement”. Dr. Singhe, upon cross-examination agreed that the statement was accurate “at that time”. Counsel put to Dr. Singhe, “So at that time, his cognitive ability to understand workplace issues and to plan and take steps was present and he had good insight and judgement?”. Dr. Singhe answered affirmatively.

26Dr. Singhe was asked by counsel to comment on an undated letter from Dr. Singhe, which had been faxed to Manulife on November 30, 2006, wherein he states that “His motivation was excellent.” Dr. Singhe explained that he was talking of the grievor’s motivation to attend the North Bay rehabilitation program, not his clinical state. When asked what the grievor’s overall cognitive state was at the time, Dr. Singhe replied that he could not recall, but commented that it could not have been good, because at the time the grievor was continuing to receive psychotherapy.

27Employer counsel put to Dr. Singhe, “Is it correct, therefore, that you cannot say for sure whether his cognitive ability was sufficient to enable him to file this grievance?”. Dr. Singhe replied, “Not sure 100 percent. But I was giving him cognitive psychotherapy. That means he

still had impaired cognition. That includes memory. So in my opinion he was not sufficiently improved at this time, but I cannot say for 100 percent without seeing my notes.”

28Counsel put to Dr. Singhe a clinical note dated January 8, 2007, which positively assesses the grievor’s condition. Counsel suggested that it shows that the grievor’s condition at the time was relatively good and that he was able to understand workplace issues. Dr. Singhe agreed that the grievor’s condition was relatively good, but not 100 percent. He explained that if cognition was not impaired he would not have needed continuing cognitive therapy. Dr. Singhe repeated that while the grievor’s condition was good at the time, it may not have been so the next week or even the next day. He reiterated that continuity of memory was not achieved until mid 2008.

29Similarly, when counsel referred to a clinical note dated May 9, 2007, where he notes “His mood is good. There is no depression”, Dr. Singhe explained that while he was not depressed that day, that could change if anything went wrong in his life. Therefore, he still needed improvement in his cognitive ability.

30Dr. Singhe testified under cross-examination that while the grievor’s cognitive ability had improved since 2005 he had periods of lapses. Until continuity of memory is achieved the grievor would have cognitive problems. Dr. Singhe emphasized that even by mid-2008, the grievor had only started to achieve some continuity. Even at the present time the grievor had no continuity of cognitive function, and therefore was continuing to receive cognitive psychotherapy treatment. Dr. Singhe agreed with counsel that given his testimony, the grievor did not have the capacity even at the present time to understand work issues and to grieve.

31Dr. Singhe was certain that during treatment the grievor had discussed with him that the employer’s treatment at work had caused him stress. However, he could not recall how and when these discussions came up, and did not believe that there was detailed discussion about that topic.

32According to Dr. Singhe, he did not become aware that the grievor had filed the instant grievance until sometime in 2009. When counsel suggested that it seems unusual that the grievor did not mention that earlier, Dr. Singhe responded that while he discussed stress at work with the

grievor, he did not go into detail because “I had little knowledge about the grievance process”. Dr. Singhe said that the grievor may have mentioned that he had filed “a grievance or some grievances”, but he was not aware he had filed as many as 11 prior grievances between 1992 and December 2005. Dr. Singhe said, “Its my fault. I had no interest in that”.

33Dr. Singhe testified that the grievor had mentioned that he had some background in health and safety, and that he was “a big union man”. He agreed that at the time he wrote his report he was not aware of any details. He was not aware that the grievor had held the position of chief union steward for a considerable period. He said, “I evaluate the patient based on cognitive deficits. I didn’t go beyond that.” When employer counsel suggested that that information about the grievor’s background in health and safety and grievance issues was relevant in giving an opinion on the grievor’s capacity to file a grievance, Dr. Singhe replied, “It will be a helpful factor, but not a conclusive factor for my decision”.

34Employer counsel again referred to the statement in Dr. Singhe’s report dated August 19, 2009, “I am of the opinion that during this period, his suffering was marked and severe enough to make him incapable to understand these issues in full and had no capacity to take the necessary steps to file the grievance.” Counsel asked whether Dr. Singhe meant by using the phrase “the grievance”, that between May 2005 to the end of 2007 the grievor had no capacity to file this particular grievance, or any grievances in general. Dr. Singhe’s response was, “I am saying he has no capacity to conduct any kind of grievances due to cognitive deficiency and memory lapses. Because of the lack of continuity of improvement I feel he has no mental capacity to file any grievance.”

35Employer counsel suggested that the fact that the grievor had filed 11 grievances between 1992 and 2005 shows that the grievor’s cognitive ability must have been sufficient to do that, Dr. Singhe replied that since the grievor was not his patient in that period he should not comment or guess. All he was prepared to say was that before the grievor came to him in May 2005, he had been diagnosed with alcohol abuse and major depression, and therefore, the grievor must have had the same symptoms he had since 2005.

36Employer counsel referred to Dr. Singhe’s previous testimony to the effect that at the time he wrote his report dated August 19, 2009, he was not aware that the grievor had filed a grievance in December 2005, and further that it was his opinion that in December 2005 the grievor had no cognitive capacity to file any grievance. Dr. Singhe agreed that that was his testimony. Counsel asked Dr. Singhe to explain how the grievor was then able in fact to file two grievances in December 2005. Dr. Singhe replied, “An important criteria of mental capacity is the continuous presence of memory, cognition and comprehension. If that comes and goes, we cannot medically qualify him as mentally competent. He can have good memory. Then he can take any action. But not when he has a memory lapse.” Counsel asked, “Therefore, is it correct that on better days he would have had the capacity to initiate the process, but may not have been able to continue with the process if he had memory loss?” Dr. Singhe agreed.

37Counsel referred to the letter dated March 6, 2007, the grievor had written to the Manulife case manager, where he writes that the employer’s treatment had affected “most of all my health”, and suggested that the grievor was there communicating his belief that the employer’s conduct had affected his health. Dr. Singhe agreed. He also agreed that the reference to “health” was a reference to alcohol abuse and major depression because the grievor had no other health issues.

38In re-examination, Dr. Singhe reiterated that when he wrote his report it was his opinion that the grievor had no capacity to file any grievance in that period. He added, “My view was he had no full capacity because he did not have full recovery”.

39Dr. Singhe also testified that he had no experience or direct involvement with grievances. Union counsel asked what his understanding was at the time he wrote the report, as to what filing a grievance meant. Dr. Singhe responded “A complaint put to a neutral person to compensate for wrongs done by the employer”.

40Before leaving the medical evidence, reference must be made to a report the employer had obtained from Dr. Michael S. Ross, a physician with specialty certification in psychiatry. Dr. Ross did not testify. However, he was asked to comment on Dr. Singhe’s report, and also to specifically provide an opinion as to whether the grievor was in a position between 2000 and

2007 to appreciate the alleged connection between his alcoholism and the workplace. Dr. Ross prepared a report based on a review of documents including communications from union counsel, a statement of particulars by the union, clinical notes and records of the grievor’s family physician, some psychiatric notes by Dr. Singhe, and some of Dr. Singhe’s clinical notes. Dr. Ross had not examined or treated the grievor at any time. It suffices to note that Dr. Ross disagreed with many of Dr. Singhe’s findings about the grievor’s mental capacity. Dr. Ross specifically concluded that the grievor’s illness had not “impaired his capacity in any significant manner related to his ability to determine and understand the relationship between his complaints and his desire and/or need to grieve his situation with his union’s assistance”.

41Mr. John Grifferty started working with the grievor in 1983, and was also a friend of the grievor. He testified that he first became concerned, in April 1999, when he observed the grievor drinking vodka and orange juice all day while on a trip to Florida. Mr. Grifferty transferred to a different work area in 2000, but returned to the mail room in 2005. He testified that in this period, he continued to socialize with the grievor outside work. While the grievor did not consume alcohol at work, he observed him drink heavily outside of work. Mr. Grifferty stated that the grievor was concerned about his work and not too jovial. He stated that after the OPSEU strike ended in 2002 there was an unprecedented backlog of work in the mailroom. Mr. Grifferty believed that the resulting stress increased the grievor’s alcohol consumption. When Mr. Grifferty returned to the mailroom in February 2005, he observed that the grievor had difficulty concentrating and focussing at work. Prior to the grievor going off sick in June 2005, he observed that the grievor was visibly shaking in the mornings.

42Mr. Grifferty testified that he kept contact after the grievor went off. The grievor did not seem motivated to change his circumstances. When the telephone rang the grievor would comment that it must be a bill collector calling. Mr. Grifferty testified that on November 10, 2005, he dropped by to see the grievor at his residence. He found the grievor lying on the couch. He was shaking, confused, unable to concentrate and not making much sense in trying to converse. Mr. Grifferty was of the view that the grievor had been drinking. He was surprised how much the grievor’s condition had deteriorated over the past 3-4 weeks. The apartment was strewn with empty beer bottles and the grievor expressed concern that if he did not find some alcohol he may go into a seizure.

43Mr. Grifferty testified that after that incident, he helped the grievor fill out various forms. It was clear to him that the grievor was in dire financial need since the employer had cut-off his pay and benefits. Mr. Grifferty believed that it was the grievor who came up with the idea, while discussing his financial situation, that he should seek the assistance of the union, with the hope of accessing the union’s emergency fund. The grievor contacted the union office, had discussions with union staff representative Mr. Henry Brugma, and that led to the filing of the December 2005 grievance.

44Mr. Grifferty testified that upon his return on March 6, 2006 after successfully completing the North Bay rehabilitation, the grievor’s mood was much better. However, through 2006 his mood went down at times, particularly if the topic of his workplace came up. Mr. Grifferty continued to maintain regular contact with the grievor through 2007. By the summer of 2007, he noticed an improvement in the grievor’s mood, although he was not as he was before, and at times had difficulty focussing on a task for a long time. In the fall of 2007 the grievor was still “OK”, although he appeared to get visibly upset when he became aware that the sister of the manager who had ignored the grievor’s pleas for help had been assigned as a manager in the mail room area without a competition. Mr. Grifferty testified that on a visit in late November 2007, he found the grievor sifting through piles of paper, mostly copies of e-mails and some grievance forms from the past, strewn all over the dining and coffee tables. Mr. Grifferty said “I believe thats when he realized how much of a toll the deliberate acts of his employer took on him.”

45In cross-examination, Mr. Grifferty testified that he did not know whether the grievor associated his heavy drinking following the 2002 strike, with the stress caused by the backlog of work. However, that possibility was probably discussed shortly before the grievor went off sick in June 2005. Mr. Grifferty stated that he first had a concern that the grievor was unable to manage his affairs and look after himself, when he observed the grievor on the couch during his visit in November 2005. Mr. Grifferty stated that the day after that incident, he saw the grievor. That day he did not appear to have been drinking. Yet he was incoherent at times in conversation. The one difference he noticed was that unlike the previous day, the grievor was focussed on getting assistance to keep away from alcohol. He assured the grievor that he would help the grievor to get away from his situation, if the grievor would agree to stop drinking. The grievor agreed.

46Mr. Grifferty said that he accompanied the grievor to the union office on the visit in December 2005 which led to the filing of a grievance. When counsel suggested that there were in fact two grievances filed, Mr. Grifferty replied that he was aware of only one, and explained that the discussions were between the grievor and Mr. Brugma, and that he stood back. Employer counsel suggested that since alcoholism and depression were serious issues at the time, the grievor’s state of health would have come up in discussions with the union representative. Mr. Grifferty replied, “I’d imagine so. But the focus was on getting him some money and getting access to the union emergency fund.” Counsel suggested to Mr. Grifferty that since in his mind he was of the view at the time that the employer’s treatment was a factor that caused the grievor’s alcoholism, that would have been a salient point he raised with the grievor. Mr. Grifferty could not recall if he did that or not, because his immediate concern was about the grievor’s financial situation.

47Mr. Grifferty agreed that the grievor actively participated in the discussion with Mr. Brugma which led to the filing of the December 2005 grievance. When employer counsel suggested that the grievor spoke rationally and had the capacity to understand the issues before signing the grievance, Mr. Grifferty replied that he was not sure because the grievor was under economic duress at the time. He agreed with counsel that apart from the economic duress, Mr. Grifferty was not aware of any other issues that affected the grievor’s mental capacity at the time, to be able to understand and sign the grievance.

48Mr. Grifferty testified that when he assisted the grievor complete the CPP/LTIP application, he did his best to ensure that the grievor understood what he was signing. Mr. Grifferty did not pressure him, or replace the grievor’s judgement when filling the form. He believed that the grievor had obtained advice from the union about that claim.

49Mr. Grifferty was asked for his opinion as to what led the grievor to file the instant grievance on December 12, 2007. He replied that in his view it was a combination of two factors. First, the grievor had by then been alcohol free for over 2 years and in that time had received treatment from Dr. Singhe. As a result, he was motivated to better himself and not remain on LTIP until retirement. Secondly, the grievor had become aware that the sister of the manager who had cut-off his pay and benefits had been assigned without competition as manager

of the mailroom. Therefore, if the grievor returned to work he would be working under that manager. That likely acted as a trigger for the grievor to act.

50Under cross-examination Mr. Grifferty repeated his opinion that until December 2007 the grievor had not made the link between his health and the employer’s conduct towards him. When counsel put to him that by January 2007, the grievor had sufficiently improved to be able to file the instant grievance, Mr. Grifferty disagreed. However, he conceded that his testimony is based on an assumption that if the grievor had the capacity to grieve any earlier than December 12, 2007, he would have done so.

51The grievor testified that in 1984 or 1985, he assumed the position of chief union steward and also became a union representative on the joint health and safety committee. In 1987, he became an instructor at the Health & Safety Centre. He testified that at least by 2000, he was familiar with the health and safety provisions of the Act and the collective agreement, and the grievance procedure provisions in the collective agreement. He agreed that he was aware that there were time limits for filing of grievances.

52He testified that 2000-2005 his suffering as a result of alcohol abuse and major depression was horrifying. He needed to drink most mornings to stop the shaking and be able to function. He recalled that he had at least three alcoholic seizures, but was not sure exactly when. He only vaguely recalled the incident in November 2005, when Mr. Grifferty found him lying on the couch. At the time he was very depressed. Doctors had warned him that if he did not quit drinking, he would die or end up in a wheel-chair. The prospect of being confined to a wheel-chair terrified him more than the possibility of death. Very shortly after that incident he quit alcohol, and has not had a drink since.

53The grievor testified that since May 27, 2005, he has been under Dr. Singhe’s care. He successfully completed an alcohol rehabilitation program in early 2006. Following that his depression gradually improved, although some days were better than others. By the end of 2007, he felt much better compared to 2006 .

54According to the grievor, during 2005 and 2006 he deliberately avoided talking about his job. A rehabilitation counsellor had told him that if he ever went back to his job he would start drinking again. He testified, however, that it was not possible to avoid thinking about work altogether. He gave the example, that sometime in 2006 a good friend and co-worker, F.S. had died. When he attended the funeral he got very upset. The grievor testified that a program manager had pulled F.S. from his job and appointed the manager’s friend in his place. F.S. had been devastated by that. The grievor testified that he believed then and still believed that the employer played a significant role in F.S.’s death.

55The grievor was asked what led him to file the instant grievance in December 2007. He testified that in late November 2007 he was “down sizing” boxes of papers he had collected over the years, since he was contemplating moving. He said “When I went through them, from what I had learned at rehab and from the internet, I saw this was not an isolated incident but it was a whole mess of things that affected my health. Because I didn’t get a job I would go and get drunk. That looked to me like mental abuse and intentional. That’s when I filed this grievance”. When asked why he did not file earlier, he replied that he “never made the connection that it was a combination of events”.

56Under cross-examination, the grievor agreed that between 1992 and 2005 he had many issues with the employer’s conduct, including being passed off for job opportunities, being yelled at, and assignment of friends without competition in breach of the collective agreement. The grievor was asked what employer conduct according to him contributed to his alcohol abuse and major depression as alleged in the instant grievance. He replied that “it was a bunch of things put together,” like denial of job opportunities and being yelled at. He stated that whenever he felt that the employer had mistreated him, “to forget about it” he would drink.

57Employer counsel suggested that when the grievor had discussions with the union representative, Mr. Brugma which led to the filing of the December 2005 grievance, Mr. Brugma was aware of his health problems. The grievor replied that he would assume so, but he could not recall talking about his alcoholism.

58The grievor agreed that when he filed the 11 previous grievances he had assistance from union representatives, and that throughout that period he was subject to alcohol abuse and major depression. Counsel suggested that at some point during that period when he filed grievances, union representatives would have raised the issue of the employer’s conduct contributing to his health problems. The grievor replied that he could not recall such a discussion. He agreed with counsel that since he had no recollection, it is possible that the issue was raised.

59The grievor agreed that by December 2005 when he discussed his grievance with Mr. Brugma about denial of pay and benefits, he already had various other allegations of mistreatment by the employer, and was of the view that there had been a pattern of mistreatment. However, he denied that he made a connection at the time between that conduct and his health because his concern at the time was financial survival.

60The grievor was asked whether he could point to anything specific he saw while sifting through the papers in November 2007, which led him to conclude that the employer had contributed to his health problems. The grievor replied that it was not one thing. It was a combination of a bunch of things.

61The grievor was referred by employer counsel to his letter dated March 6, 2007 to Manulife, where he had alleged that the employer’s conduct had affected “most of all my health”. Counsel suggested that at the time the grievor believed what he wrote. The grievor did not respond to the question, but stated that he wrote that letter because he wanted Manulife “to go in and investigate”.

62In re-examination the grievor testified that he did not recall writing the March 6, 2007 letter to Manulife until he saw the letter during this arbitration. Counsel asked when he concluded that the intent of his letter was to have Manulife investigate, the grievor testified that he was speculating “today” what his intent at the time would have been.

DECISION

63As I have already noted, if the grievor’s delay of over 2 years in filing the instant grievance was primarily a result of his mental incapacity due to alcohol abuse and major depression, that would constitute a “reasonable” explanation. The initial issue to be determined is whether the evidence establishes on a balance of probabilities that to be the case.

64Dr. Singhe and Dr. Ross provided direct opinions on the very issue of whether the grievor had the capacity to file the instant grievance earlier than December 12, 2007. Dr. Singhe’s opinion was that the grievor did not have that capacity. Dr. Ross came to the opposite conclusion. While acknowledging the expertise of the two doctors in psychiatry, in the particular circumstances, I am unable to decide the issue before me by solely relying on either opinion.

65Dr. Ross had never treated or even met the grievor. His opinion was in effect a rebuttal of Dr. Singhe’s report, based only on his review of documentation provided by employer counsel. Most significantly, despite his explicit offer in the report to make himself available to testify before the Board, he did not testify. Therefore, I am not convinced that he had an accurate and complete understanding of all of the circumstances relevant to the opinion he provided. Moreover, union counsel had no opportunity to test the reliability of his conclusions through cross-examination.

66On the other hand, Dr. Singhe did testify. Nevertheless, I cannot accept his opinion at face value either, because his testimony was inconsistent with other reliable, and in most cases undisputed, evidence before me. While Dr. Singhe’s opinion in the report was clear and without qualification, he was not as certain about the grievor’s capacity to file the grievance during testimony and was reluctant to answer that question directly. Moreover, it was evident that at the time he wrote his report, he was not privy to very relevant information in several respects.

67Despite Dr. Singhe’s clear and unqualified conclusion that the grievor lacked the capacity “to understand these issues in full and had no capacity to take the necessary steps to file the grievance” between 2005 and 2007, under cross-examination he agreed that while the grievor did not have a good memory “all the time” and had periods of short-term memory loss, between 2005-2007 there were periods of time when his condition was good so as to allow him to file the grievance. He was not able to say for sure whether the grievor had that capacity.

68Dr. Singhe’s clinical notes indicated, and Dr. Singhe agreed, that on or about January 2006, the grievor displayed “good insight and judgement”, and had “the cognitive ability to understand workplace issues and to plan and take steps”. I have reviewed earlier in this decision other clinical notes from Dr. Singhe’s files which make positive assessments of the grievor’s cognitive functions. When confronted with that evidence, Dr. Singhe’s response each time was to the effect that the grievor’s cognitive ability must have been impaired at those times, because he was still receiving cognitive psychotherapy. His position was that if there was no impairment he would not have continued such treatment. The totality of Dr. Singhe’s testimony demonstrated that it was his view that the grievor, or any individual for that matter, could not be said to have cognitive capacity until there is continuous presence of memory, cognition and comprehension. The grievor’s mood and cognitive ability, however, could be affected by any adverse event in his life. That could lead to periods of memory loss. Then his condition would return to what it was. As Dr. Singhe put it many times, “it comes and goes”. The period of memory loss could be as short as one day or may last for weeks. He stated that in that situation, the grievor cannot be medically qualified as “mentally competent”. However, the issue before the Board is not whether the grievor came within the medical definition of “mental competence”. Rather, it is whether the evidence substantiates the “reasonable explanation” for the delay offered in this case, i.e. that until December 2007 the grievor lacked the mental capacity to file this particular grievance.

69The flaw in the logic is apparent as it applies to the issue before me. Dr. Singhe’s position is that if the grievor is receiving cognitive psychotherapy, that means he is suffering from cognitive deficits and his cognitive capacity is still impaired. If there was impaired cognitive capacity, the grievor cannot be medically certified as mentally competent, and a person not mentally competent does not have the capacity to understand work issues fully and take steps to grieve.

70That logic may be perfectly appropriate in medical theory. However, when applied to the facts before me, it makes no practical sense. The uncontradicted evidence is that even at the time of arbitration in 2010, the grievor was continuing to be treated by Dr. Singhe with cognitive psychotherapy. That means that he is not mentally competent, and therefore has no capacity to file a grievance. In fact, Dr. Singhe, clearly and directly agreed with employer counsel that even

as of 2010 the grievor had no capacity to file a grievance. However, the grievor has in fact filed the present grievance on December 12, 2007. The grievor and the union have conceded that as of that day the grievor did have the capacity to grieve. Their position is only to the effect that the grievor did not have that capacity at any earlier point of time.

71There are other reasons which render Dr. Singhe’s opinion unreliable. Dr. Singhe was only vaguely aware that the grievor had some involvement in health and safety and that he was “a big union man”. In fact, the grievor had an extensive background and experience with regard to health and safety issues. For many years the grievor had served as chief union steward, union member of the joint health and safety committee and as a health and safety instructor. Dr. Singhe agreed that this information would have been helpful, although not conclusive, in giving his opinion. Moreover, although Dr. Singhe gave an opinion that the grievor had no capacity to grieve, he candidly admitted that he did not know what was involved in filing a grievance. It was apparent that even at the time of his testimony he did not have an accurate understanding of that. He believed that filing a grievance involved making a complaint to a neutral seeking compensation for employer wrong-doing. Article 22.2.1 only requires that an employee discuss his complaint with his immediate supervisor. Therefore, it seems clear that Dr. Singhe was giving an opinion on the grievor’s capacity to do a certain act, without an understanding of what that act involved. The fact that Dr. Singhe was prepared to do that is not surprising, because his premise was that as long as an individual cannot be medically certified as mentally competent, he/she has no capacity to make any decision.

72As I set out above, Dr. Singhe insisted under cross-examination, and under repeated questioning during re-examination, that between 2005 and 2007 the grievor lacked the capacity to file any grievance. The reality, however, is that in December 2005 the grievor did in fact file two grievances. Similarly, the uncontradicted evidence is that at least from 2000 the grievor was suffering from alcohol abuse and major depression. However, he filed numerous grievances when he felt that he had been wronged by the employer. When confronted with this information, Dr. Singhe conceded that at those particular times the grievor must have had the capacity because he had been provoked. Dr. Singhe agreed under cross-examination that information about grievances the grievor had filed in the past would have been relevant in deciding upon is opinion. He blamed himself for not taking an interest in seeking that information.

73Given my conclusion that I cannot simply rely upon the doctors’ opinions on the very issue of the grievor’s capacity to file the instant grievance prior to December 2007, I am left with the task of determining that issue based on the evidence before me. The essence of the instant grievance is that the employer’s conduct towards the grievor, contributed to or caused the grievor’s illness, namely alcohol abuse and major depression. The grievance, in other words, alleges a link between the employer’s conduct and the grievor’s health. The “reasonable explanation” offered by the grievor for the delay of over 2 years in filing the grievance is that he did not have the mental capacity to recognize that link and act on it until December 2007.

74The grievor’s testimony was that he made that connection between the employer’s conduct and his health only in November 2007, when he was sorting out the papers he had collected over time. However, under cross-examination, he was unable to identify any document or documents which led him to conclude at that time that the employer had affected his health. His position was that at that time he realized that it was “a whole mess of things” that caused his illness and that until then he had not made the connection that a combination of events involving the employer drove him to alcoholism. At the time he also realized that the employer’s conduct was intentional and appeared to be mental abuse.

75The difficulty with that testimony is that, the grievor was not able to point to any information he came upon that day, which he was not already privy to. Even more importantly, there is clear and unchallengeable evidence that at least by early March 2006, the grievor had reached the conclusion that the treatment he received at the hands of the employer affected his health.

76The grievor testified that during rehabilitation in February 2006 a counsellor cautioned him that if he ever went back to his job, he would start drinking again. Although the grievor could not recall such a conversation, it is very probable that, for the counsellor to reach such a conclusion, the grievor did discuss with the counsellor at least the possibility of a link between his job and his alcoholism.

77The letter the grievor wrote on March 6, 2007 to Manulife clearly establishes that at least by then the grievor had formed the view that the employer’s treatment had affected his health.

The evidence is that he wrote that letter on his own, and further that the only health issues he had were alcohol abuse and major depression. In that letter the grievor clearly articulated his belief that the employer had mistreated him on several occasions and that such conduct had affected his well-being in different ways, including “most of all” his health.

78Faced with this evidence, Dr. Singhe conceded that at that time the grievor did have the necessary capacity to link his health issues with employer conduct. However, union counsel argued that ability to make that link was not dispositive of the issue. He submitted that the filing of a grievance involves three steps, namely, the ability to think, plan and implement. In his view, the evidence that the grievor made the link in March 2006 establishes only that the grievor was able to “think”. It does not establish that he had the ability to plan and implement.

79The onus is on the union to establish a reasonable explanation for the delay. There is no evidence that would support a finding that the grievor lacked the capacity until December 2007, to plan and implement action to remedy a wrong he had identified. The evidence is that the grievor was ill with alcohol abuse and major depression at least from 2000. Between 2000 and December 2005 the grievor was able to, and did file approximately nine grievances, when he felt that he had been wronged by the employer. Dr. Singhe agreed that the grievor had the ability to take action when he felt that someone was attempting to harm him. The evidence is that the grievor’s condition was at its worse at the end of 2005 and early 2006 prior to his attending rehabilitation. Yet, when his pay and benefits were cut-off in December 2005 he took the initiative to approach the union, and with the assistance and advice of a union representative, filed a grievance.

80The grievor’s own testimony was that he was an experienced union chief steward and health and safety instructor. He agreed that he was aware of the employer’s obligation under the collective agreement and legislation with regard to health and safety in the workplace. Similarly he agreed that he was familiar with the grievance procedure under the collective agreement, and specifically that there were time limits for filing of grievances. He did not claim that his diseases resulted in loss of this knowledge he had gained over the years. At least by March 2006 he had concluded that the employer had contributed to or caused his alcoholism by abusing its managerial power. He had numerous past experiences where he felt wronged by the employer

and he sought the assistance of the union and filed grievances. There is no reasonable explanation as to what prevented the grievor from doing the same in this instance.

81Union counsel repeatedly submitted that the grievor lacked the required capacity until December 2007. That submission however, was not based on any supporting evidence, but appears to be simply based on the theory that if he had the capacity earlier, the grievor would have grieved earlier. That theory in fact is inconsistent with the evidence before me.

82For the foregoing reasons I conclude that the delay of over 2 years in filing the instant grievance is not attributable to mental incapacity. There is no doubt that throughout the relevant period the grievor was suffering from alcohol abuse and major depression. His condition was at its worse in 2005, but gradually improved following treatment and rehabilitation starting early 2005. However, the fact that he suffered from these diseases with the accompanying symptoms, is not evidence that he lacked the capacity to file this grievance. The specific evidence before me leads to the conclusion that he did have that capacity. Obviously he did not decide to file a grievance until December 2007, despite being privy to all of the information he required to make that decision. He decided to take action against the employer through Manulife because he felt that the employer’s abuse of power was affecting his health. He wanted the insurer “to go in and investigate”. Whatever the reason may have been why he did not turn his mind to filing a grievance, the evidence does not indicate that it was due to a lack of mental capacity to do so.

83I find that the grievor and the union have not established a reasonable explanation for the delay in filing the grievance. Therefore, I must consider the other relevant factors which might go to satisfy me, despite the absence of a reasonable explanation for the delay, that there are reasonable grounds for the extension of time.

84The delay in this case occurred at the outset of the grievance procedure, i.e. in the initial filing stage. That does not favour an exercise of discretion to extend time.

85Similarly, there is no evidence that there was any reason for the employer to expect any time prior to the filing of the grievance on December 12, 2007 that the grievor would allege a violation of the health and safety provisions. This fact also does not support an extension.

86There is no suggestion that anyone other than the grievor was responsible for the delay. Given his conclusion at least by March 2006 that the employer’s abusive conduct was affecting his health and his knowledge and experience in health and safety and grievance procedure issues, the grievor had an understanding of all of the information he required to file a grievance. He had the responsibility, therefore, at least to consult the union about his concern, as he had done many times before. This evidence also does not favour an extension of time.

87The union relied on several arbitration awards where time was extended. All of them involved discharge grievances. This is not a grievance about loss of employment. Union counsel conceded that this grievance was not of the most serious nature, but submitted that for the grievor it was a very important grievance because he was seeking “substantial financial compensation and justice in the workplace.” At best, it could be concluded that a grievance about health and safety is a serious grievance. However, it is not of the most serious variety as a discharge grievance would be. I consider this factor to be neutral in relation to the exercise of discretion to extend time.

88Finally, I turn to the length of delay, which in this case is well over two years. The union filed three arbitration awards where time was extended pursuant to s. 48(16) of the Labour Relations Act. They are Re Corporation of the City of Toronto, , [1978] 20 L.A.C. (2d) 17 (Brent); Re Corporation of the City of Toronto, [1983] 12 L.A.C. (3d) 355 (Knopf); and Re Saint-Gobain Technical Fabrics Canada Ltd., [2005] 83 C.L.A.S. 181 (Chapman). In those cases the length of delay was 2½ months, 2½ months and 5½ months respectively. In the two City of Toronto cases the arbitrators concluded based on the evidence before them that the grievor had no capacity to file the grievances throughout the period of delay. In Saint-Gobain the arbitrator concluded that there was a reasonable explanation for most of the period of delay. The period of delay that was not reasonably explained was attributed to the union and not to the grievor.

89Union counsel placed particular reliance on Re Government of Province of British Columbia, , [1995] 52 L.A.C. (4th) 48 (Laing), where the grievance was about the change of the grievor’s status from full-time to half-time. The delay in filing was more than two years. The arbitrator’s discretion to relieve against breaches of time-limits was founded upon s. 89 of the B.C. Labour Relations Code, which provided as follows:

89. For the purposes set out in section 82, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limitation, may

(e) relieve, on just and reasonable terms, against breaches of time limits or other procedural requirements set out in the collective agreement.

90Arbitrator Laing, at pp. 64-65, cited with approval the following statement in Re Bristol-Myers Manufacturing, , [1988], 3 L.A.C. (4th) 256 (McColl) at 262:

Timeliness is a troubling issue for most arbitrators. In many respects barring the hearing of a dispute due to timeliness is an unsatisfactory ending to potentially substantial issues between the parties. Invariably, it has the appearance of a “technicality”. Arbitrators have a broad mandate in this jurisdiction to interfere even with rigorous contractual language which mandates time to be important to the parties. That discretion, however, should not be exercised in a vacuum. Arbitrators are expected to balance the equities and reach a conclusion which does not do an injustice to the conflicting interests. At the same time, arbitrators ought not to just ignore the collective agreement provisions. It is one of the consideration is balancing the equities.

Arbitrator Laing also observed at p. 262 that in exercising the discretion to extend time limits, it was useful to determine the following factors:

…(a) the degree of force with which the parties have given contractual expression to the time-limits; (b) whether the breach of the time-limits was in the early or later stages of the grievance procedure; (c) the length of the delay; (d) whether the applicant for relief has a reasonable explanation for the delay; (e) the nature of the grievance – i.e., the impact on the grievor of a refusal to grant relief against the time-limits; (f) whether the employer would suffer prejudice by the granting of such relief, and (g) any other factors peculiar to the circumstances at hand.

At pp. 66 she concluded:

It is important to balance the equities involved in issues of timeliness. If anything, the unique and exceptional facts before me make that even more important in this case.

Given the significance of this matter to the grievor, my finding that her illness was the central factor in causing the delay in filing the written grievance, coupled with my conclusion that the employer is not unduly prejudiced by the delay, I would not be acting fairly and properly in considering the use of my discretion if I found, in these quite extraordinary circumstances, that the grievance should fail because the time-limits were not met. It seems to me that it is precisely because of such compelling human need to find flexibility in cases like this, unusual as they may be, that the discretion to relieve against time-limits was given to arbitrators by the statute. Indeed, as I have already noted, counsel himself suggested this would be the

result. I find that this grievance should not be barred because the time-limits were not met.

91Union counsel urged me to adopt a similar “equitable and humane” approach to the grievor’s request for an extension of time. However, s. 48(16) does not entitle me to ignore its terms and relieve against time limits on compassionate grounds alone. In the B.C. Government case, based on the evidence before her, the arbitrator was led to conclude that the grievor’s illness “was the central factor in causing delay in filing” the grievance. She also found that an extension of time would not unduly prejudice the employer. In contrast, in the instant matter, quite apart from the issue of prejudice, I must be satisfied on the basis of the evidence, that reasonable grounds exist for an extension of time. A key component of the envisaged reasonable grounds is the reason or excuse for the delay. The union asserted that the delay was caused by the grievor’s lack of mental capacity. As I observed earlier, if the asserted reason for delay had been established on a balance of probabilities, I would have been justified in extending time, as arbitrator Laing did, even if the other factors that make up the “reasonable grounds” including the length of the delay were not in the grievor’s favour, because no undue prejudice was claimed by the employer. The evidence, however, was not consistent with the asserted reason for delay. In the circumstances, I would not be exercising my discretion in accordance with the terms of s. 48(16), if I were to extend time, solely based on the sympathy and compassion that is evoked for the grievor by the evidence of the suffering he endured for years as a result of his illness.

92In Re Gamble, 1635/96 (Gray), there had been a delay of nearly two years in the filing of a discharge grievance. The union argued that even if the grievor’s explanation for the delay is not regarded as “reasonable”, the nature of the grievance should lead the Board to extend time despite the length of delay. The reason for the delay offered by the grievor was that he relied on the advice of his lawyer in a criminal proceeding that he should not file a grievance until the criminal matter is concluded. For reasons articulated in the decision, the Board did not accept that explanation to be reasonable. It noted at para. 24 that “Accordingly, the length and effect of the delay are crucial considerations in determining whether to grant an extension under subsection 48(16) of the Act.”

93Vice-Chair Gray reviewed with approval the recognition that under s. 48(16) the existence of reasonable grounds for extension is an issue distinct from the issue of whether the

opposite party would suffer substantial prejudice if an extension were granted. He also discussed that even without proof of actual specific prejudice, delay can result in subtle prejudice, which may or may not be demonstrable. At para. 29 be concluded as follows:

Even when the opposite party cannot demonstrate substantial consequent prejudice, delay that is due to lack of due diligence on the part of the grievor or someone acting on his or her behalf can be so extreme that the importance of a discharge grievance will not be sufficient basis for using the power in subsection 48(16) of the LRA to override agreed-upon time limits for filing a grievance. The delay here was that extreme. Indeed, the delay from the date of discharge until April 1996, when the grievor says he first contacted the union on the advice of his second lawyers, was that extreme. Most of the decisions relied upon by the union involved delays of several weeks or a few months. One relieves against 7 months’ delay (Re Corporation of the City of Toronto (Springate), supra), one relieves against a delay of 13 months (Re Ferranti-Packard Transformers Ltd., supra). Despite the importance of a discharge grievance to someone with this grievor’s length of service, I am not persuaded that there are reasonable grounds to relieve against the delay of nearly 24 months here nor, I would add, that there would have been reasonable grounds to relieve against a roughly 19 month delay from September 1994 to April 1996 if this grievance had been filed at that time.

94The facts in Re Wicken, 2216/97 (Knopf) are somewhat similar. The discharge grievance was launched some 16½ months after the termination date. Here also, the reason given for the delay was that the grievor had relied on legal advice that he should await the outcome of the criminal proceedings and that the union had informed the grievor that it would not or could not file a grievance on his behalf. The Board considered the various factors that are relevant in deciding the existence of reasonable grounds for extension. With regard to the length of delay, the Board at p. 12 observed:

The length of the delay is a very significant factor in this case. In none of the cases cited by the Union was there a delay of over 16 months. The cases dealing with delay often talk about the importance of having discharge cases heard on their merits despite delays of a matter of months. In the case at hand, we have a delay of well over one year. This very lengthy delay is the very type of thing that labour arbitration and the grievance process were designed to avoid.

At pp. 13-14 Vice-Chair Knopf wrote:

This is a very hard case to decide. There is a tendency for arbitrators to allow discharge grievances to proceed on their merits when there is no prejudice suffered by the employer. In this case, the potential prejudice because of the concern about lost documents has been averted because of the Union’s stipulation that it would not challenge the Employer’s use of photocopies in order to prove its case. Further,

any potential liability that would have been affected by the delay in the filing of the grievance could easily have been dealt with by way of an award of compensation running only from the date of the grievance. Therefore, it is tempting to allow the grievance to proceed on its merits.

However, I have concluded that this is not an appropriate case to exercise a discretion to relieve against the time limits. Having weighed all the factors enumerated above and taken into consideration the fact that the grievor is a part-time employee with relatively short term seniority, it would be contrary to the principles of labour relations to allow this case to proceed given that the grievance was launched 16½ months after the grievor received his notice of termination. The awards relied upon by the Union are of assistance in terms of the general principles that they set out. However, they involved delays with significant shorter periods than the delay in this case. There has been no case cited to me where a delay of this length and with similar language in the collective agreement was allowed to proceed through to arbitration. The discretion available under the Labour Relations Act gives the arbitrator equitable jurisdiction. But this jurisdiction is to be exercised only where the criteria set out in the section have been satisfied. In the case at hand I have taken into consideration all the factors listed above and given special regard to the length of the grievor’s service, the length of the delay, and the only explanation being that he received improper advice. Despite the able and persuasive argument advanced by counsel for the Union, it must be concluded that there are not reasonable grounds for extending the time limits for the filing of this grievance.

I recognize that this result is unfortunate for the grievor as an individual. However, this award is made based on the principles of labour relations concepts and the importance of the timely administration of the collective agreement.

95The delay in the instant matter is even more extreme than in the Re Gamble and Re Wicken decisions. Nor does this matter involve a discharge grievance. I have concluded that the grievor was not prevented from filing the instant grievance earlier, as a result of a mental incapacity, the only explanation asserted for the delay. In the circumstances, despite the personal sympathy I have, for reasons similar to those set out in Re Wicken I cannot reasonably conclude that reasonable grounds exist for extending time to accommodate a delay of this magnitude.

96The result of all of the foregoing is that the grievance is untimely and therefore inarbitrable. Therefore, I hereby dismiss it.