Ontario Public Service Employees Union (Hollingsworth et al) v. The Crown in Right of Ontario (Ministry of Attorney General), 2011 CanLII 41853

GSB#2010-0202, 2010-0207, 2010-0211, 2010-1179, 2010-2203, 2010-2550, 2010-2551

UNION#2010-0212-0009, 2009-0633-0011, 2010-0526-0005, 2009-0317-0008, 2010-0526-0053,

2010-0526-0054, 2010-0551-0055

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hollingsworth et al)

Union

• and -

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

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

HEARING

June 10, 2011.

DECISION

1The grievances in this matter involve over fifty Court Reporters who contend that the Employer is not applying the collective agreement to their work preparing and certifying transcripts. With the exception of one group, the Employer has moved to dismiss these grievances as raising the same issues currently being addressed in the remedial phase of Re OPSEU (Hunt et al.) and Ministry of the Attorney General, GSB No. 2001-0534 (Abramsky).

Facts

2For the purposes of the Employer’s motion to dismiss, the parties have accepted the Union’s statement of particulars regarding the claims made in the grievances. Basically, the grievances allege that the Employer has violated the collective agreement by not compensating Court Reporters appropriately for completing transcript work, and further that the Employer has not provided employees with the tools and materials required to perform this work. In the grievance of Colleen Groupil, the Union also alleges that the Employer failed to account for losses to her transcript work due to a workplace injury to her arm and that she did not receive any benefits concerning this work.

Reasons for Decision

3The Employer asserts that these new grievances are properly part of the remedial issues over which the Board is already seized in the Hunt matter. It asserts that these grievances raise the same issues. Accordingly, it submits that dismissal would not prejudice the grievors, all of whose claims could be encompassed by the remedial relief sought by the Union in that case. It points out that the particulars ordered to be produced by the Union include identifying each individual Court Reporter that the Union is asserting a claim for retrospective relief, the dates and times associated with transcript production, and specifically how the collective agreement applies to the individuals and quantifying the claim for each individual. The Employer asserts that all of these claims are properly part of the Hunt remedial issues and that allowing these claims to proceed would involve a duplication of the Board’s and parties’ resources as well as potentially lead to more and more individual grievances. The Employer submits that the Board needs to send a message that all of these issues are to be addressed in one forum – the Hunt et al. remedial case.

4In my view, an earlier ruling by the Board in Hunt et al., dated December 4, 2009, is dispositive of the Employer’s motion. The issue in that decision centered on the Board’s authority to order prospective relief. The Employer asserted that the Board did not have the authority to order prospective relief, whereas the Union asserted that a “full and final” remedy included prospective relief.

5The genesis of that decision was the Employer’s proposal to adopt a “regulatory model” for the delivery of transcripts. After reviewing the relevant case law and arguments of the parties, I concluded that the Board did not have jurisdiction to determine whether the Employer’s new proposed regulatory model was consistent with the collective agreement, or the Board’s decision in Hunt, as part of the remedial aspects of the case. I determined that the Employer’s regulatory model proposal raised new issues, and that any challenge to it would be based on new facts and require a full hearing and determination. I further stated at par. 53: “The Board’s declaration in Hunt does not give the Board continuing jurisdiction to ensure compliance with the collective agreement in relation to transcript production.”

6This last sentence is key to the motion in this case. There is no continuing jurisdiction under the Hunt case to address ongoing compliance with the collective agreement, which is exactly the issue that these grievances raise.

7It is significant, in my view, that the Employer has not made any changes in regard to transcript production since the July 27, 2006 decision in Hunt in regard to transcript production – almost five years ago. It maintains the status quo ante. In fairness, for a significant period there was an agreement to maintain the status quo. However, that agreement ended some time ago. The retrospective remedial issues in Hunt have not been concluded. It is, therefore, not surprising that new individual grievances have been filed alleging that the Employer has failed to comply with the collective agreement in regard to transcript production. These are new matters that do not fall within the jurisdiction of the Board in Hunt. It would therefore not be appropriate to dismiss them on the basis that they are part of the Hunt matter.

8It may well be, as the Employer asserts, that allowing these grievances to proceed may result in duplication of the issues and evidence. However, the Employer has not moved to consolidate these grievances with Hunt, but, rather, has moved to dismiss them outright. It may also be that a failure to dismiss these grievances might lead to many new individual grievances. That is certainly possible given the continuation of the status quo ante. But that fact, and the fact that the Hunt remedial issues have not yet been finalized, does not create jurisdiction where jurisdiction does not exist. These grievances are not before the Board in Hunt and there is no basis to dismiss them for that reason.

9The Employer asserts that allowing these grievances to proceed is an abuse of process. I cannot agree. These matters arise long after the decision in Hunt. They arise from the fact that the Employer has still not complied with the decision in Hunt. They create no abuse of process.

Conclusion:

10For the foregoing reasons, The Employer’s motion to dismiss is denied.