GSB#2008-3252

UNION#2008-0234-0319

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Liantzakis)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

HEARING

June 8, 2011.

Decision

1In her grievance dated December 18, 2008, Ms. T. Liantzakis alleges that the Employer contravened article 9.1 of the Collective Agreement, the heath and safety provision. This article provides that “The Employer shall continue to make reasonable provisions for the safety and health of its employees…” The Union claims that the injury Ms. Liantzakis sustained at work on March 17, 2006, and the consequences of her injury are as a result of the Employer’s failure to make reasonable provisions for her health and safety. The Union is seeking a declaration, directions and compensation to remedy the alleged breach of the Collective Agreement.

2When this grievance first came on for hearing, the Employer requested that the proceeding be adjourned pending the outcome of the Union’s judicial review of OPSEU (Monk et al) and Ministry of Community Safety and Correctional Services, GSB #1995-1694, April 29, 2010 (Gray) (“the Monk decision”). Ms. Liantzakis has received WSIB benefits for her workplace injury. Since the Union in part is seeking compensation which the Monk decision found this Board cannot award because of section 26 (2) of the WSIA, the Employer submitted for a number of reasons that it made sense to obtain the Divisional Court’s decision before hearing Ms. Liantzakis’s grievance. In a decision dated November 18, 2010, I dismissed the Employer’s motion to adjourn this grievance.

3The issue now before me concerns the arbitrability of the grievance. The Employer took the position in its second stage response on March 16, 2009, that the grievance was untimely. The parties agree that there is no issue about whether a proper stage 1 interaction with a supervisor had occurred. There is also no dispute that the grievance was filed beyond the mandatory 30 days referenced in the grievance procedure in article 22.2.1. The Union argued that the circumstances here warranted the exercise of the discretion in section 48 (16) of the Labour Relations Act to extend the time for filing the grievance. The Employer requested that the grievance be dismissed because of its view that there is no reasonable basis for granting an extension in the circumstances of this case.

4Counsel established the factual framework for this dispute by agreeing to some facts, including the facts that were agreed to for the purpose of hearing the Employer’s motion to adjourn the grievance pending the judicial review of the Monk decision, and by the Union calling Ms. Liantzakis to testify. The Union filed a written statement prepared by Ms. Liantzakis, which she read during her testimony. Without objection from the Employer, the Union also filed written statements prepared by Ms. Liantzakis’s two teenage children, Jordan and Sofia.

5In support of his submissions, Employer counsel referred me to the following decisions: OPSEU (Szabo) and Ontario Reality Corporation, GSB #1811/98, February 19, 2001 (Herlich); OPSEU (Narine-Singh) and Ministry of Education and Training, GSB #0035/98, September 29, 1999 (Leighton); OPSEU Rondeau) and Ministry of the Solicitor General and Correctional Services, GSB #217/97, October 18, 2000 (Leighton); OLBEU (Wicken) and Liquor Control Board of Ontario, GSB #2216/97, June 12, 1998 (Knopf); OLBEU (Kevin Gamble) and Liquor Control Board of Ontario, GSB #1635/96, September 1, 1998 (Gray); OPSEU (Berday) and Ministry of Transportation, GSB #2007-3132, December 9, 2008 (Devins); OPSEU (Faulkner) and Ministry of Community Safety and Correctional Services, GSB #2006-2093, September 23, 2008 (Petryshen); and Oakville Hydro Electricity Distribution Inc. v. Tyco Electronics Canada Ltd. (2004), 2004 CanLII 13633 (ON SC), 71 O.R. (3d) 330 (Ont. S.C.J.). Counsel for the Union referred me to the following decisions: OPSEU (Flynn) v. Ministry of Government Services, [2009] O.G.S.B.A. No. 121 (Dissanayake); Re Greater Niagara General Hospital and ONA (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff); Re Salvation Army Grace Hospital and Service Employees Union, Local 210 (1980), 1980 CanLII 4008 (ON LA), 25 L.A.C. (2d) 407 (Brunner); OPSEU (Union) v. Ministry of Health and Long-Term Care, [2002] O.G.S.B.A. No. 7 (R. Brown); and, OPSEU (Stone) v. Ontario Clean Water Agency, [2001] O.G.S.B.A. No. 16 (Johnston).

6Ms. Liantzakis began her employment as a Youth Officer (“YO”) in 1990. It was while performing duties as a YO at the Invictus Youth Centre (“IYC”) that she sustained an injury on March 17, 2006. A summary of the incident that occurred on her 3:00 p.m. to 11:00 p.m. shift on that day will be sufficient to appreciate the nature of the Union’s position on the merits of the grievance. Ms. Liantzakis and other staff were required to move an uncooperative and aggressive female youth offender from her unit to segregation. This involved transporting the youth offender by van from her cottage unit to the segregation unit located in the main building. Ms. Liantzakis and another YO had hands on the youth offender as they approached the van. The youth offender entered the back of the van first, followed by Ms. Liantzakis. Then someone closed the van door. Although there were at least three YOs and an operational manager outside the van, Ms. Liantzakis was the only YO in the van with the youth offender, contrary to policy. The youth offender again became aggressive and assaulted Ms. Liantzakis. She defended herself and attempted to get control of the youth offender. Her colleagues observed what was taking place but were unable to enter the van to assist her immediately because the van door lock was faulty. Ms. Liantzakis was in the back of the van with the youth offender for no more than 1½ minutes before other YOs entered the van to assist. The youth offender was eventually secured in the segregation unit. Ms. Liantzakis became aware of pain and swelling in her left hand as she walked backed to her work location. She reported the injury to the Operational Manager. Following his instructions, she saw the nurse at the institution. She then left the workplace before the completion of her shift. Ms. Liantzakis has not returned to work for the Employer subsequent to sustaining her workplace injury on March 17, 2006. The IYC was closed at the end of May in 2006 and Ms. Liantzakis was administratively assigned to the Maplehurst Correctional Complex.

7Union counsel highlighted some information about Ms. Liantzakis’s injury and the treatment she received. It is unnecessary to refer to all of this information since there is no suggestion that the delay in filing the grievance was due to incapacity. The day after her injury, Ms. Liantzakis was advised at a hospital that she had a fractured scaphoid bone in her left wrist. In May of 2006 she was diagnosed with reflex sympathetic dystrophy, a debilitating disorder involving the skin, nerves, blood vessels and bones. She had an aggressive form of the disorder which affected her leg as well. At times, she received nerve block treatment. The WSIB referred her to the functional rehabilitation program in January of 2007. Three months later she was discharged from the program without receiving a clearance to return to work. In addition to the pain and other physical symptoms affecting her mobility, Ms. Liantzakis was diagnosed with PTSD and received treatment from a psychologist. She was referred by the WSIB to the serious injuries department in April of 2011 with a functional ability rating of 64%. She has a permanent disability and it appears that she will be unable to return to work for the Employer. The written statements before me disclose that her injury has had a tremendous impact on her and her immediate family. Ms. Liantzakis’s mobility issues have affected her husband and children and have created a stressful situation for the entire family.

8In claiming that the Employer did not make reasonable provisions for Ms. Liantzakis’s health and safety, the Union focused on essentially three matters. One is that Ms. Liantzakis was the only YO in the van with a youth offender contrary to policy when there was an operational manager present. The second is that there was a failure to keep the door lock on a Ministry vehicle in proper working condition. Ms. Liantzakis was aware of the presence of the operational manager during the incident and she was advised by YOs that they were unable to open the door and assist her immediately because the lock on the van door had jammed. The third matter the Union relies on is that the Employer knew about the faulty door lock on this particular van, but made no effort to fix the lock. Ms. Liantzakis did not learn of this last matter until over two years after the incident giving rise to her injury.

9Ms. Liantzakis testified that for many months after the injury her attention was on getting better. She indicated that about 8 months after the incident she had discussions with friends and family members about seeking recourse from the Employer. This led her to contact a lawyer to inquire about suing the Employer. The lawyer advised her that he could not help her because she was in receipt of WSIB benefits. She contacted five other lawyers who gave her the same advice. There is no indication that any of these lawyers advised her to contact her bargaining agent.

10On August 10, 2008, almost 29 months from time she sustained her injury, Ms. Liantzakis coincidently encountered Ms. Dana Duval in a parking lot of a shopping mall. Ms. Duval had been co-chair of the Joint Health and Safety Committee (“JHSC”) at the IYC. During their discussion, Ms. Liantzakis told Ms. Duval what she was going through and explained what happened during the incident on March 17, 2006. Ms. Duval asked her if she had filed a grievance about the door lock and told her that the issue of the door lock had been raised at the JHSC more than once and that the Employer had not done anything about it. Ms. Liantzakis indicated that it was this information that led her to believe that she may have claim against the Employer.

11On August 25, 2008, Ms. Liantzakis emailed Mr. G. Fraser, the Employer co-chair of the JHSC, asking him if he had a copy of the maintenance request to fix the van door and any relevant notes of the JHSC because Ms. Duval no longer had any relevant documents. By late August or early September of 2008, Mr. Fraser advised her that he also did not have any relevant documents. Ms. Liantzakis then made efforts to contact someone in the Union for assistance. She first contacted the person who was the Local Union President at the IYC. He advised her that he could not help her because the IYC was closed and he worked at a different Ministry. Others she contacted were similarly unhelpful or directed her to someone else. The Local Union President at the Maplehurst Correctional Complex also told her that he could not help because youth detention institutions were now in a different Ministry and the IYC had closed. Ms. Liantzakis eventually connected with individuals, including Mr. K. Jennings, a staff representative with the Union, who assisted her in filing her grievance. The grievance was filed approximately 4 months after the conversation with Ms. Duval and 2 years and 9 months after she sustained her workplace injury.

12Ms. Liantzakis testified that she did not contact the Union soon after the incident giving rise to her injury because she did not know if she had a case. She indicated that she was not a Union supporter which I took her to mean that she had little knowledge about the Collective Agreement, including the grievance procedure. She stated that she assumed that there were time limits for filing a grievance but that she did not know what they were. Her only previous experience with a grievance was when she was asked to sign a group grievance initiated by others. Ms. Liantzakis indicated that she did everything she could to find out what to do after her conversation with Ms. Duval but that she encountered difficulties because the IYC had closed and she could not easily connect with someone in the Union who could assist her.

13Subsection 16 Article 48 of the Labour Relations Act provides as follows:

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 the 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.

14The effect of this provision is that a time limit can be extended if the arbitrator is satisfied that there are reasonable grounds for the extension and that such an extension will not substantially prejudice the opposite party. Both conditions must be satisfied. The relevant factors for consideration when determining whether to exercise the discretion to extend time limits were canvassed in Becker Milk Company and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2nd) 217 (Burkett) and Greater Niagara General Hospital and O.N.A. (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3rd) 1 (Schiff). Arbitrator Burkett identified the following factors:

1. The reason for the delay given by the offending party.

2. The length of the delay.

3. The nature of the grievance.

After identifying these factors, the arbitrator went on to state:

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.

15Arbitrator Schiff referred the following factors:

1. The nature of the grievance.

2. Whether the delay occurred in launching the grievance or at a 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.

16The decisions referenced in paragraph 5 contain examples of how these factors are applied in different factual contexts. The various factors are not considered in isolation. The extent of the delay and the reason for the delay will be considered in light of the seriousness of the subject matter grieved.

17The first issue for determination is when the time for filing a grievance began to run. Counsel focused their submissions on the claim relating to the faulty lock on the van door. The Union took the position that the time for filing the grievance only began on August 10, 2008, when Ms. Duval advised Ms. Liantzakis that the Employer had been aware of the faulty lock and did nothing to repair it. The Union then argued that a delay of a little over four months in theses circumstances should not deprive Ms. Liantzakis of a hearing on the merits. The Employer submitted that the time for filing the grievance began to run when the incident giving rise to her injury occurred on March 17, 2006.

18I am satisfied that the time for filing a grievance in this case began to run on March 17, 2006, the day when Ms. Liantzakis was injured during the course of her duties. Ms. Liantzakis was aware of the presence of the operational manager when the incident occurred. She also became aware soon after the incident that the lock on the van door was not working properly and that this was the reason why the YOs present were delayed in assisting her. The time for filing a grievance arising from the possible failure of the Employer to keep a Ministry vehicle in good repair began to run from the time when the incident occurred and when the van door lock was faulty. The information Ms. Duval conveyed to Ms. Liantzakis on August 10, 2008, during their coincidental meeting did not add anything of significance which would justify the conclusion that it was only then that she had the basis for making a claim against the Employer. The fact that the Employer knew about the faulty lock and did nothing about it may be of evidential value but does not change the essential feature of a claim that is based on the failure of the Employer to keep its vehicle in a safe condition. It is likely that the information conveyed by Ms. Duval would have been disclosed much earlier if Ms. Liantzakis had pursued a grievance with due diligence. It would be quite odd that the information conveyed to Ms. Liantzakis during this coincidental meeting with Ms. Duval would have the effect of starting the clock for filing a grievance. If this was the result, then logically if their meeting and discussion had not occurred until August of 2011, the clock would not start running until then, which clearly cannot be the case. Given that the time to file a grievance in this matter began on March 17, 2006, and that the grievance was not filed until December 18, 2008, the delay amounts to approximately 2 years and 9 months.

19The application of the relevant considerations to the facts of this case reveals that the Employer’s position on whether it is appropriate to extend the time for filing the grievance has considerable merit. The nature of the grievance concerns a health and safety issue. I agree with the Union that this kind of issue is important and therefore favours an extension of the time limit. However, it does not overwhelmingly favour an extension. The significant remedy being sought by the grievance is compensation. Although it appears that Ms. Liantzakis will not return to the workplace, this is not a discharge case or a type of case such that the nature of the grievance will outweigh other relevant factors. Apart from the nature of the grievance, the other relevant factors do not favour an extension to the 30 day time limit.

20There is no justifiable reason for the delay that is present here. I can appreciate that Ms. Liantzakis’s initial focus was on determining the reason for her health issues and obtaining the necessary treatment. She was provided with a diagnosis of her condition in May of 2006. Her focus was never on pursuing her rights under the Collective Agreement until she had the conversation with Ms. Duval in August of 2008. Before the end of 2006, long before her conversation with Ms. Duval, Ms. Liantzakis did make efforts to pursue a claim against the Employer by contacting lawyers. Employees are presumed to be aware of their rights and obligations under the Collective Agreement. Although she had limited experience with the Union and with the grievance procedure, Ms. Liantzakis had been in the corrections bargaining unit for many years, she had signed a group grievance, she knew who the President of the Local Union was and she knew there were time limits for filing a grievance. There is no satisfactory explanation for why she did not contact her bargaining agent sooner. For Ms. Liantzakis to simply indicate that she did not know that she had a case until she spoke to Ms. Duval is not a satisfactory explanation for the delay in filing the grievance.

21The length of the delay in launching the grievance in this case is extreme. It would be a rare case where an extension is granted in the face of this kind of delay, even if one were to discount the four month delay that occurred after Ms. Liantzakis’s discussion with Ms. Duval. The Employer had not been provided with any indication that it could be in contravention of the Collective Agreement for the incident on March 17, 2006, until Ms. Liantzakis filed her grievance almost three years after the incident. The fact that Ms. Liantzakis had an active WSIB claim arising from the March 17, 2006 incident does not amount to notice to the Employer that a claim under the Collective Agreement may be forthcoming.

22For the foregoing reasons, I am compelled to conclude that there are no reasonable grounds for extending the time to file the grievance dated December 18, 2008. It is therefore unnecessary to determine whether the Employer would be substantially prejudiced by an extension. However, this might be a case where the Employer would be substantially prejudiced by an extension. I simply note that the extreme delay by itself and the failure to locate relevant documents which may never be found would likely present both parties, including the Employer, with considerable difficulty in litigating the grievance.

23Although I recognize the significant impact the workplace injury has had on Ms. Liantzakis and her family, there is not a sufficient basis for extending the 30 day time limit as requested by the Union. Accordingly, the grievance date December 18, 2008, is hereby dismissed.