GSB#2003-1520
UNION#2003-0248-0070
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Gillis et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Randi H. Abramsky Vice-Chair
FOR THE UNION
Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Peter Dailleboust Ministry of Government Services Labour Practice Group Counsel
HEARING
November 1, 2011.
Decision
1At issue is whether the GSB has jurisdiction to hear a dispute between the parties concerning the entitlement of the grievor, Michael Derkach, to indemnity for his legal fees which he incurred in connection with a criminal proceeding related to his work as a Correctional Officer. The Employer has moved to dismiss this matter on the basis that the Board lacks jurisdiction to hear this particular dispute. The parties have elected to proceed under Article 22.16 of the collective agreement, and have requested a non-precedential decision.
Facts
2The grievor, Michael Derkach, was a grievor in the proceeding involving OPSEU (Gillis et al.) and Ministry of Community Service and Correctional Services, GSB 2003-1520. That case, initially, involved a number of Correctional Officers involved in an alleged assault against an inmate on October 18, 2002. Some of the Correctional Officers were discharged and others, including Mr. Derkach, had been suspended.
3In March 2005, Mr. Derkach was advised by his criminal lawyer that it was likely that the criminal charges against him would be withdrawn by the Crown. On March 30, 2005, Mr. Derkach formally requested reimbursement of his legal expenses. On April 25, 2005, that request was denied by Regional Director Marg Welch. Mr. Derkach received notice of that denial on May 26, 2005. Thereafter, in June 2005, the Union, through discussions between the Local President and Ms. Welch, sought reconsideration of that decision, but that was unsuccessful. The criminal charges against Mr. Derkach were withdrawn by the Crown on April 26, 2005.
4On January 18, 2006, the parties settled a number of the grievances involved in the Gillis matter, but not all. The grievance of Mr. Derkach was one of the ones that was resolved through a Memorandum of Settlement. The Union relies on a provision of this Settlement to assert that the Board has jurisdiction over Mr. Derkach’s claim for legal indemnity. In pertinent part, the Settlement provides:
With respect to the grievor Michael Derkach, the parties agree and acknowledge that Mr. Derkach has requested that the Employer reimburse his legal expenses referable to criminal proceedings arising from the events of October 18, 2002 at the Hamilton West Detention Centre [which resulted in the aforementioned discipline and these settled grievances], and the parties agree that this settlement is no way impacts upon the rights and positions taken by Mr. Derkach or the Employer with respect to that claim for reimbursement of legal expenses.
With respect to the grievors [G.T.] and [S.W.], in the event that either grievor request that the Employer reimburse their legal expenses referable to criminal proceedings arising from the events of May 23, 2003 at the Caistorville Golf Club [which resulted in the aforementioned discipline and these settled grievances], the parties agree that this settlement in no way impacts upon the rights and positions taken by those grievors or the Employer with respect to those claims for reimbursement of legal expenses.
The five grievors ….Michael Derkach…. and the Union agree that all outstanding grievances and claims pertaining to this matter (as attached) by those Grievors are hereby withdrawn and that the GSB shall be notified of same. The list of grievances attached as Appendix “A” refers to 24 grievances that are hereby settled (#26 through 49). Those five Grievors and Union further release the Employer from any and all actions, causes of action, claims and demands of every nature and kind directly or indirectly concerning the events that form the subject of any of the grievances and claims in these proceedings, save and except as identified above in paragraphs 6 and 7.
The parties further agree that Vice-Chair Abramsky will remain seized with respect to the implementation of the terms of this settlement.
5On August 8, 2006, a group grievance was filed by five of the grievors involved in the Gillis matter, alleging that Employer violated Article 2, 3, and COR14 of the collective agreement. COR14 is the legal indemnity provision, which had been included in the collective agreement in 2005. One of the individuals included in the group was Mr. Derkach.
6On November 17, 2006, a Stage 2 meeting was held, and on November 28, 2006, the Ministry denied the grievance. Under the collective agreement, the Union then had 15 days to refer the grievance to arbitration. It did not do so. In fact, the grievance has never been referred to the GSB. Nor does the grievance have an OPSEU number.
7The matter of reimbursement for legal fees was discussed at three med-arb sessions involving the Ministry of Community Safety and Correctional Services and OPSEU, although the dates are not clear. The earliest one might have been in November 2007. The other two were sometime in 2008 and/or 2009. No resolution was obtained. Sometime thereafter, in early 2011, the matter was scheduled for hearing before me, based on an alleged breach of the January 18, 2006 Memorandum of Settlement.
Reasons for Decision
8After having carefully considered the facts, the documentary evidence, the submissions of the parties and the case law provided, I conclude that the Employer’s motion to dismiss must succeed. The GSB has no jurisdiction to decide this matter.
1. The GSB does not have jurisdiction over Mr. Derkach’s claim for legal indemnity under paragraph 6 of the January 18, 2006 Memorandum of Settlement.
9A review of the Settlement clearly demonstrates that paragraph 6 was meant to preserve Mr. Derkach’s claim for legal indemnity in the face of the broad release negotiated by the parties in paragraph 12 of the Settlement. In paragraph 12, Mr. Derkach, like the other grievors, released the Employer “from any and all actions, causes of action, claims and demands of every nature and kind directly or indirectly concerning the events that form the subject of any of the grievances and claims in these proceedings, save and except as identified above in paragraphs 6 and 7.” (emphasis added). Paragraph 7 is a similar exemption for two other grievors in the event that they requested legal reimbursement. The “save and except” language clearly establishes that but for paragraph 6, the Employer could have asserted that Mr. Derkach released his claim for legal reimbursement. Paragraph 6 precludes such an argument. It did not create any rights. It simply preserved his claim for legal indemnity which would otherwise have been extinguished by paragraph 12. Paragraph 7 did the same for the two grievors identified there.
10The subject of legal indemnity for Mr. Derkach was not part of the Gillis et al. grievances. It was a separate matter – and the only impact of paragraph 6 was to preserve that claim. It did not bring it within the ambit of the Gillis grievances. Consequently, I have no jurisdiction to decide the merits of Mr. Derkach’s entitlement to legal indemnity by virtue of paragraph 6 of the Memorandum of Settlement.
2. The GSB does not have jurisdiction over the August 8, 2006 grievance.
11The collective agreement requires a grievance to be referred to the GSB within 15 days of the Stage 2 denial. If that does not occur, the Board has no jurisdiction to extend the time limit for referral. Re OPSEU (Johnston) and Ministry of the Attorney General (2010), GSB No. 2009-1147 (Dissanayake). In this case, the Stage 2 denial took place on November 28, 2006, so by mid-December 2006, the grievance should have been referred to the Board. That did not happen, and in fact, the grievance was NEVER referred to the GSB. Nor is there an OPSEU number. That is significant because although a late referral may be waived by the Employer, the Employer here had no opportunity to waive it because the grievance was never referred to arbitration. Had it been referred – late – the Employer would have had an opportunity to object. The Union, in my view, cannot fail to refer a grievance and then assert that the Employer waived its right to object. Consequently, the Employer did not waive its objection to the lack of a referral in this matter. Because the grievance was never referred to the Board, the GSB has no jurisdiction to hear this grievance.
12The fact that the issue of legal fee reimbursement was discussed a number of times during the med-arb sessions between the parties does not give the Board jurisdiction over that issue. Such informal discussions cannot, by itself, create jurisdiction where none exists. To rule otherwise, in my view, might discourage the full and frank discussion of issues, even if not properly “before” the GSB.
13Further, my notes from the September 20, 2011 conference call in this matter, which arguably might be considered the Employer’s first opportunity to raise the issue of non-referral, indicates that counsel for the Employer did raise the fact that the matter had not been pursued to the GSB, despite the passage of more than four years. He also asserted that the fact that the issue may have been discussed during the med-arb process did not negate the need for the Union to move the process forward.
14For the reasons expressed above, neither the Memorandum of Settlement nor the August 8, 2006 grievance provides the Board with jurisdiction.
15In light of these conclusions I need not address the parties’ other arguments concerning jurisdiction.
Dated at Toronto this 8th day of November 2011.