GSB#2010-2210

Union#G-61-08

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Union)

Union

• and -

The Crown in Right of Ontario (Metrolinx - GO Transit)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Ian Fellows Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Sven Poysa Osler, Hoskin & Harcourt LLP Barristers and Solicitors Counsel

HEARING

March 6, 22 & 23, 2012.

Decision

1The Board is seized with a policy grievance wherein the union grieves the employer’s failure to recognize and deal with a number of positions as bargaining unit positions under the collective agreement. By way of remedy the grievance seeks:

1. That the positions be posted and filled in accordance with the collective agreement.

2. That an appropriate wage rate be set for the positions in accordance with the collective agreement.

3. That union dues be remitted to the union in respect of the positions.

4. That any affected employees be made whole, and such other remedy as the union may advise and an arbitrator may grant.

2The parties agreed that the Board should hear a determine a motion by the employer to the effect that the Board is without jurisdiction over the grievance because it had been referred to arbitration outside mandatory time limits prescribed in the collective agreement. However, the Board was advised that the parties had agreed that in the event the motion is upheld, the Board would proceed to hear the merits of the grievance, treating the grievance as a newly filed grievance.

3The relevant provisions of the collective agreement are as follows:

4.5(4) Either party may refer a policy grievance to the Grievance Settlement Board within forty (40) calendar days of the last step of the grievance procedure in accordance with the referral to arbitration procedure described below.

4.12(1) It is understood and agreed that failure of the Union to advance a grievance within the agreed time frames at any step of the grievance procedure shall constitute abandonment of such grievance and;

4The employer did not adduce any viva voce evidence. The union called Mr. Denis Tanham (Local Union President) and Mr. Dan Harris (Local Union Vice-President). The parties stipulated that since the filing of the instant grievance there have been several significant changes in the employer’s Labour Relations personnel. There is a new Manager of Employee Labour Relations and a new Director of Employee Labour Relations. Employee Relations Consultants Ms. Megan MacRae, Mr. Michael Tong, Mr. Paul Sebunya and Bryan Randall are no longer in the employer’s employ. Also, since the new Manager Employee Relations assumed office, until the referral of the grievance to arbitration, there has been no discussion about the grievance between the parties.

5The instant grievance was filed on June 3, 2008. The step two meeting was held on June 9, 2008 and the employer’s reply was issued on June 16, 2008, stating “As settlement, management will provide the union with a copy of non-bargaining positions listed within this policy grievance. Management will also meet with the union officials to clarify those roles/tasks that may be of concern to the union”. The referral to arbitration was made on December 9, 2010, some 2½ years after the date of the step two reply.

6The union concedes that the referral was not made within 40 days from the date of the step two reply as contemplated in articled 4.7. However, it contends that the grievance is nevertheless arbitrable on three alternate grounds. First, the union submits that the employer waived its right to rely on the time limit for referral to arbitration. Second, that there was an agreement between the parties that the timelines would be held in abeyance indefinitely until it is determined that no resolution is possible following further discussions between the parties. Finally, it was the union’s position that in any event the time limit for referral to arbitration is not mandatory.

WAIVER OF TIME LIMITS FOR REFERRAL

7For purposes of determining this issue, I shall proceed on the assumption, without determining, that the time limit for referral to arbitration in the collective agreement is mandatory. The union’s waiver argument is to the effect that despite the obvious failure of the union to comply with that time limit, the employer continued to discuss the grievance with union officials, and took steps to have the merits of the grievance determined at arbitration. This, the union claims, was done without raising with the union any concern that the referral was untimely. No such concern was raised until March 5, 2012, the day before the first scheduled hearing in this matter.

8The evidence indicates that following the receipt of the employer’s step two reply on June 16, 2008, Mr. Harris wrote an e-mail to Ms. MacRae on July 14, 2008 to the effect, “I am asking for an open ended extension for G-61-08 policy, Bargaining Unit Recognition, so the union and the company can set dates for discussions”. On July 15, 2008, Ms. MacRae responded as follows:

G-61-08 Policy – I would like for us to put some time frame on the extension for referral as I want to be assured that there are no miscommunications in terms of meetings discussed and agreed to. I understand there had been some discussion about meeting with the company, however I had understood those to be the proposed resolve to the grievance in question. As such, I will give extension until August 22, 2008 at this point to give us some time to ensure we all have a common understanding of the proposed meetings you refer to.

9It is apparent from the foregoing evidence that while the union requested an “open-ended extension”, the employer only agreed to an extension until August 22, 2008. Mr. Tanham testified that despite the union’s failure to meet that time limit, subsequent to that date there were “on and off” meetings between the union and the employer about the grievance. However, he had no notes or documentation, and was unable to provide any dates or specifics about these meetings. Filed in evidence, however, was a page from the journal maintained in the union office which has a notation that on October 8, 2008, he and Mr. Harris had a 8:00 a.m. meeting appointment at the Employer’s head office. Mr. Tanham testified that usually those meetings were to deal with outstanding grievances, and he believed the instant grievance would have been part of the discussion.

10Another notation in the journal indicates that Mr. Tanham and Mr. Tony Norman had a meeting at 10:00 a.m. at the employer’s head office on February 10, 2009. Mr. Tanham testified that this meeting resulted from the agreement made at the step two meeting to provide job descriptions to the union and have further discussions. According to Mr. Tanham, at this meeting the union conceded that some of the positions it had previously claimed were outside the bargaining unit, but continued to assert that certain other positions treated by the employer as non-bargaining unit, should be included in the bargaining unit. A summary of the meeting is set out in a letter dated February 10, 2009 from Mr. Brent Morrison, employer Compensation Analyst, to Mr. Tanham with copy to the Human Resources Director and an Employee Relations Consultant among others. It lists 8 positions under “Agreed to be Non-Bargaining” and 7 other positions under “Non-Bargaining Status in question”, and under the Re-line “Subject Non-bargaining job descriptions” states:

As per our discussion at today’s meeting, you have agreed that the following list of eight (8) non-bargaining jobs outlined in the left column, previously contested by you, are clearly non-bargaining. The non-bargaining status of the seven (7) jobs outlined in the right column is still being contested by you, and we will schedule further discussions regarding this, and the matter of moving the I.T. Field Technician and the Radio Technician from the ATU Frontline to the ATU-OFPT employee group.

Mr. Tanham testified that no further meetings were scheduled to discuss the grievance because at the time elections for the union executive were approaching, and union officials were very busy with that. Mr. Tanham testified that the employer had a practice of informing the union in writing, when it deems a grievance to be abandoned due to non-compliance with time limits. Four such letters, two in 2009 and two in 2011 were filed in evidence. He testified that no such letter was sent by the employer with respect to the instant policy grievance. Mr. Tanham testified that apart from the absence of such a letter, the employer did not at any time inform the union in any other manner, that the policy grievance it had filed was deemed to have been abandoned. Therefore, his understanding was that the grievance was held in abeyance until further meetings are scheduled to resolve it.

11Under cross-examination, Mr. Tanham agreed that he had no specific recall of the “on and off” meetings relating to this grievance he testified about. He also agreed that the February 10, 2010 meeting was the last meeting related to this grievance he could recall, and that at that meeting the discussion was about the inclusion or exclusion of positions in the bargaining unit. There was no discussion at all about time limits, or about remedies.

12Mr. Dan Harris testified that as Local Union Vice-President, he also served as the union’s grievance officer. However, since he had only recently assumed office, and was busy with numerous other grievances, he had very little involvement with the instant policy grievance. However, he did attend the step two meeting, and understood that there would be further meetings scheduled after the union reviews job descriptions for the positions at issue. Since he was new, he did not have any understanding about what the situation was related to the timeliness of the grievance. He stated that he saw the e-mail from Ms. MacRae extending time limits to August 22, 2008, but he paid little attention to it because that grievance was Mr. Tanham’s responsibility.

13Mr. Harris testified that the meeting on October 8, 2008 noted in the union’s journal was to discuss several grievances including the instant policy grievance. He also recalled a subsequent meeting after the new Local Union President Mr. Ray Doyle took office, at which this grievance was discussed. He stated that at that meeting the union was represented by Mr. Doyle, Mr. Peter Brown and himself. Ms. Sheryl Jackman represented the employer. For the discussion of the instant policy grievance only, Ms. Mary Anne Pankiw, Director Human Resources, participated. Mr. Harris testified that he goes on a moose hunting trip every October, and that the meeting occurred shortly before his hunting trip in 2009. On that basis he estimated that the meeting would have been in late September or early October 2009. He testified that there was no mention at the meeting about any time limits related to the grievance. Mr. Harris testified that until the day of the Grievance Settlement Board hearing on March 6, 2012 the union was not aware that the employer was taking the position that the grievance is abandoned. He testified that had the employer given any indication earlier that it was taking that position, he would have decided whether the employer’s position had merit, and if so, the grievance would have been refiled. Mr. Harris corroborated Mr. Tanham’s testimony that it was the employer’s practice to advise the union by letter, whenever it considered a grievance to be abandoned due to non-compliance with time limits, and that no such letter was received with regard to the instant grievance.

14In cross-examination, Mr. Harris reiterated that the instant grievance was one of several discussed at the meeting on October 8, 2008. He was able to confirm that because he had cross-referenced that with notes he kept in his “calendar book”. However, he stated that his calendar book had no notes about what specifically was discussed about this grievance. He further reiterated his testimony in chief that at a further meeting in September/October 2009 the merits of the instant grievance were discussed; that there was no discussion whatsoever about time limits or abandonment of the grievance or about remedies for the grievance; and that the union would have refiled the grievance had the employer taken the position that the grievance filed had been abandoned. In re-examination, Mr. Harris testified that at the meeting in September/October 2009, there was discussion about exclusion and inclusion of positions in the bargaining unit.

15The union filed in evidence a number of documents that post-date the date of referral to arbitration. That evidence indicates that on December 17, 2010, the hearings coordinator of the Grievance Settlement Board wrote to the parties advising that the Board is in the process of scheduling the instant grievance for hearing and offering dates for the parties’ consideration. Both parties corresponded with the Board through December with regard to dates, and on January 5, 2011, the Board confirmed April 26, 2011 as the hearing date, and a formal Notice of Hearing was issued to both parties. The evidence establishes that the April 26, 2011 hearing was adjourned on consent at the request of the union. By subsequent Notice of Hearing dated May 16, 2011 the hearing was rescheduled for September 28, 2011.

16The evidence indicates that on September 15, 2011, union counsel wrote to employer counsel requesting production of job descriptions for the positions at issue. On September 21, 2011, employer counsel forwarded the requested job descriptions without prejudice to any position the employer may take regarding their admissibility. In addition, the employer requested production of all arguably relevant documents from the union. On September 21, 2011, union counsel wrote several e-mails to employer counsel, suggesting that the employer should proceed first at the hearing, and objecting to what he viewed as a change of position by the employer that the positions are not covered by the recognition clause.

17At the union’s request, the hearing scheduled for September 28, 2011 was also adjourned on consent. In consultation with the parties the Board rescheduled the hearing for March 6, 7, 22 and 23 of 2012. On February 21, 2012 union counsel produced to the employer documentation relating to bargaining history, job postings and job descriptions it intended to rely on at the hearing, and requested from the employer particulars and production relating to every OFPT position the employer claims to be not included in the bargaining unit.

18On February 23, 2012, counsel exchanged e-mails again, discussing how to efficiently deal with the employer’s claim that the recognition clause does not capture any new OFPT positions. Then on March 5, 2012, the day before the first scheduled hearing date, employer counsel wrote to union counsel as follows:

In looking into the chronology of the grievance it seems to me that the referral to the GSB was untimely. Since this is a policy grievance re an alleged ongoing violation of the CBA, it seems the union could just turn around and file a new grievance, but I was thinking that at least it matters for retroactivity in the event the union is ultimately successful on one or more positions. I’m happy to discuss further, as always. I’m in Hamilton this PM but could be available for a call at 3:45 or after 6 pm. We can also connect tomorrow AM.

19When the hearing commenced on March 6, 2012, the union made its opening statement setting out its position on the merits of the grievance. He also advised that he had just been informed that the employer was making a timeliness objection. When the employer was invited to make its opening statement, counsel advised the Board that the employer had a timeliness objection with regard to the referral to arbitration, and proceeded to make the opening statement on the merits, without prejudice to that timeliness objection. Subsequently the Board was advised that the parties had agreed to adjourn the hearing scheduled for the next day March 7th, and to deal with the employer’s motion when the hearing resumes on March 22, 2012. The motion was heard on March 22 and 23, 2012, and this is the ensuing decision.

20On the issue of waiver, employer counsel conceded that no concern about the timeliness was raised by the employer until the day before the scheduled hearing date. However, he pointed out that there was no prejudice to the union. Counsel submitted that as soon as the union took the position that it was seeking full retroactive remedies, the timeliness issue was raised, solely to protect itself from potentially retroactive liability. But for the union’s pursuit of retroactive remedies, the employer remains committed to dealing with the issues raised in the grievance.

21Employer counsel submitted that waiver is an equitable doctrine and that a party seeking equitable relief must have “clean hands”. The union does not have clean hands because it sat on the grievance without referring it to arbitration. The union alone was responsible for the delay. To allow the union to pursue retroactive remedies at this time prejudices the employer in two ways, he contended. First, it potentially exposes the employer to liability for a large sum of money. Secondly, several members of the employer’s human resources staff who dealt with the grievance have left its employ.

22Counsel cited case law that stands for the proposition that for the doctrine of waiver to apply there must be both the knowledge of a right and the intention to forego such right. Counsel argued that the evidence supports a finding that the employer had no intention of waiving its right to rely on article 4.12(1) which deems failure to comply with time limits to constitute abandonment. He referred to a spread sheet setting out information about grievances, printed out from its system in preparation for this arbitration. With regard to the instant policy grievance, it sets out the date accepted and the date of the step two meeting. Under “status” it states “closed”. Under “results/comments”, it is noted, inter alia, “extended until December 31, 2008 – considered abandoned”. Nothing is noted under the column “arbitration”. Counsel submits that this internal business record is inconsistent with any intention on the part of the employer to forego its right to argue abandonment.

23Union counsel disagreed with the employer’s characterization of the evidence as indicating that it raised the timeliness objection as soon as it was made aware that the union was seeking remedies retroactively. He pointed out that the remedies sought in the policy grievance included a remedy that “union dues be remitted to the union in respect of the positions.” That claim does not limit the remedy to future union dues. It is a general claim for union dues. Counsel submitted that there is no evidence whatsoever that the union, at any time following the filing of the grievance, communicated with the employer about the nature or extent of its claim for union dues. To the contrary, the clear evidence is that remedies were not discussed at all during any of the meetings between the parties. Counsel points out that it was the employer, on March 5, 2012, that for the first time talked about union dues when it raised a concern about its potential liability for union dues retroactively. That concern must have arisen from the grievance itself, submitted counsel, because the union had not made any other communication about its claim for union dues as a remedy.

24With regard to the notation of “abandonment” in the spread sheet, counsel submitted that it is an internal employer document to which the union was not privy. The union was not made aware at any time that the employer had considered the grievance to be abandoned and the file closed. He further pointed out that a subsequent entry in the exhibit indicates the status of the grievance to be “open” and “extended until December 31, 2008”. Under “arbitration” it states “referred to GSB”. He submits, therefore, that the information in the spread sheet is, at best, confusing. He submits that if there was a time limit for referral, whether it was August 22, 2008 or December 31, 2008, the union did not comply with it. When the union referred the grievance to arbitration in December 2010, the employer would not have engaged in discussing dates and exchanging disclosure and particulars on the merits of the grievance with the union if the grievance was deemed abandoned. It would have informed the union that it was too late to refer the grievance to arbitration. Union counsel pointed out the evidence of its witnesses, that it was the employer’s practice to inform the union by letter, when it considers a grievance to be abandoned due to untimeliness. The union put into evidence four examples of such letters. He submitted that the absence of such a letter in this case is further confirmation that the employer did not consider the grievance abandoned.

25Counsel submitted that to permit the employer to raise timeliness for the first time on the eve of arbitration would seriously prejudice the union. As Mr. Harris testified, had the employer taken that position earlier, the union would have been able to assess the merits of that position, and refilled the grievance to minimize its losses.

26There is no doubt that the instant grievance was referred to arbitration clearly outside the time limits. The breach of the time limits was readily apparent and the employer does not suggest otherwise. Similarly, it is not disputed that the timeliness of the referral was first questioned on the day before the first scheduled day of arbitration, and a formal objection made on the first day of arbitration.

27Brown & Beatty, Canadian Labour Arbitration, at p.2-107) describes the doctrine of waiver as follows:

The concept of “waiver” connotes a party not insisting on some right, or giving up some advantage. However, to be operative, waiver will generally require both knowledge of and an intention to forego the exercise of such a right.

In its application, waiver is a doctrine that parallels the one utilized by the civil courts known as “taking a fresh step”, and holds that by failing to make a timely objection and “by treating the grievance on its merits in the presence of a clear procedural defect, the party waives the defect.” That is, by not objecting to failure to comply with mandatory time-limits until the grievance comes on for hearing, the party who should have raised the matter earlier will be held to have waived noncompliance, and any objection to arbitrability will not be sustained. This has been held to be so even though there was a timely objection as to arbitrability but not one that related to the failure to meet time limits. Where, however, the objection to untimeliness is made at the earliest opportunity, even if it is not made in writing, it will preclude a finding that the irregularity was waived.

28There certainly is no evidence in the present case that the employer at any time advised the union that it was waiving time limits. The evidence establishes only that it agreed to extend time limits until August 22, 2008 (and possibly a further extension until December 31, 2008). However, it is trite to say that waiver need not necessarily be explicit. It may be inferred from conduct. Given the requirement of intent, the fact that the timeliness objection was formally raised for the first time on the eve of or even the day of arbitration does not necessarily lead to a finding of waiver. The objective evidence relating to the conduct of the parties must be examined to determine whether it reasonably leads to an inference of intent. The reasoning behind the doctrine of waiver is that it is unfair and prejudicial to allow a party to mislead the other party into believing that it is prepared to deal with a grievance despite its untimeliness, and then to rely on its strict rights to preclude the grievance from proceeding further. Therefore, it is not enough for an employer to state that it did not subjectively intend to forego its right to object. The test has to be objective, that is, was it reasonable for the union, in all of the circumstances, to conclude that the employer would not be objecting on the basis of time limits? If the employer had conducted itself in a manner as would reasonably lead to such a conclusion, then intention to waive time limits would be inferred. Thus in Re Inergi LP, (2006) 85 C.L.A.S. 272 (Beck) at para.29, the Board wrote:

The other matter to be considered is whether Inergi has waived its rights to raise the matter of timeliness by its conduct. There is no question that Inergi did not raise the issue until its counsel referred to it in a letter to counsel for the Society after the first day of hearing in February, 2006. I do not think, however, that the facts establish a waiver by Inergi. The jurisprudence on waiver is clear that the evidence must show an intent on the part of a party to waive its rights with respect to the time period set out in the collective agreement. Certainly that intent can be deduced from objective evidence. But I do not think that the evidence here amounts to that, and I do not find that Inergi has waived its rights.

(Emphasis added)

29Whether intention may reasonably be inferred obviously depends on the evidence in a given case. The employer in the instant case did not lead any viva voce evidence to explain why the objection was first raised on the eve of arbitration at the earliest. Counsel argued that the employer’s intention was to act in good faith by addressing the issues raised by the policy grievance which were of a continuing nature, while treating the grievance itself to be abandoned. The employer’s position, however, is not at all supported by the objective evidence before me. The notation of “abandonment” in the spread sheet does not assist for two reasons. First, that entry is not consistent with a later entry which indicates the status of the grievance to be “open’ (as opposed to the earlier entry “closed”). Moreover, the later notation does not indicate that the grievance is “abandoned’. To the contrary, it notes that the grievance is “Referred to GSB”. In any event, even if this document is taken as indicating that the employer in its own mind considered the grievance to be abandoned, the uncontradicted evidence is that it did not in any manner communicate that to the union. To the contrary, with no mention of time limits at all, it continued to engage in discussions with the union about the merits of the grievance. It did not give any indication to the union that, while it was prepared to deal with the issues, the grievance itself is deemed abandoned. The uncontradicted evidence is that the time limit for referral was not mentioned at all, until employer counsel’s e-mail to union counsel on the eve of arbitration. As the passage from Brown & Beatty at para.26 (supra) indicates, it is the failure to object to or raise timeliness that leads to waiver.

30Employer counsel submitted that waiver should not apply because the employer raised the timeliness objection as soon as it was made aware that the union was seeking union dues retroactively. There is some support for the proposition that the emergence of a new issue that brings to the employer’s attention the significance of the time limits may operate to defeat a waiver argument, provided the employer raised the timeliness objection with dispatch upon learning of the new issue. In Re Wage 2003-3075 (Herlich) the facts were remarkably similar to the facts here. There, the parties participated in the Joint Review process under the collective agreement and scheduled the grievance for arbitration before the Board on December 17, 2004. At the unions request that date was adjourned on consent, and the hearing was subsequently rescheduled for March 22, 2005. On March 14, 2005, the employer for the first time indicated that it might raise a preliminary objection to the grievance on the basis of timeliness. On March 18, the employer advised the union that it would be bringing a motion at the hearing on March 22, 2005. The union argued that the employers scheduling of the grievance for arbitration without raising any objection constituted the taking of a fresh step that resulted in waiver. The employer took the position that it raised timeliness as soon as it was able to assess the nature of the case upon finally receiving particulars from the union. The Board, at para. 42 wrote:

42 These citations and the cases referred to disclose that a “fresh step” might consist of little more than participation in subsequent steps of the grievance procedure or in the referral of a grievance to arbitration. There is no doubt in my mind that, in the present case, the Employers participation in the Joint Review Process as contemplated by Article 22.17 of the collective agreement and described therein as “an integral part of the dispute resolution mechanism” constituted a fresh step in the proceedings. At a minimum, the Employers failure to raise any timeliness issue for the period of approximately 1-1/2 years between the filing of the grievance and the eve of the hearing before me requires some compelling justification to avoid the conclusion that the Employer has waived its right to raise any timeliness objection.

31Like here, the employer in that case argued that there was no intention to waive time limits. At paragraphs 44-45, the Board sets out the employer’s position:

44. In advancing this aspect of its case, the Employer, relying on the second sentence of the first paragraph of the Brown & Beatty extract, essentially denies that, whatever might otherwise be suggested by its conduct, it knowingly waived any procedural irregularities.

44 In essence, the Employer argues that it had no knowledge of the nature of the case until shortly before making its intention to raise a timeliness objection clear to the Union. The formal notice of intention to raise a timeliness objection was delivered promptly after the Union finally complied with repeated Employer requests to provide particulars of the grievance.

32In concluding that on the facts before him waiver did apply, Vice Chair Herlich states at paragraphs 49-50:

49 But again and despite the view of the dispassionate cynical observed, if I were persuaded that something very recently brought to the Employer`s attention had set off the timeliness warning light for the first time – even at this late stage of the process – I might be not be persuaded to conclude that the Employer had waived its right to make the objection. However, I was provided with copies of both the grievance dated October 15, 2003 and the particulars provided by the Union dated March 14, 2005. There is simply nothing in the latter document which is not already contained in the grievance itself and which brings any issue of timeliness to the fore. Indeed, nothing can be pointed to in the Union’s particulars as raising timeliness issues for the first time in the Employer’s mind. In other words, on March 14, 2005 the Employer was in no better position to raise a timeliness objection than it had been on October 15, 2003. And (apart, of course, from the imminent commencement of the arbitration proceedings) neither did it suddenly face any more pressing urgency to do so. In the interim, it had foregone any opportunity to raise the issue either during the grievance procedure or during the Joint Review Process or by way of any other less formal communication between the parties.

50 In these circumstances, I am satisfied that the Employer has waived its right to object to the timeliness of the grievance.

33In my view, on any reasonable reading of the grievance filed in the instant matter, there is nothing therein suggesting that the union was limiting its claim for union dues in any manner. There is no evidence that the union in the grievance itself, or in any other manner, indicated to the employer that should it succeed, it would not be claiming its full entitlement for loss of union dues. There is no evidence that, at the time the employer finally raised the timeliness objection on the eve of the arbitration hearing, it had any more, or different, information about the nature and extent of the unions claim for union dues, beyond that set out in the grievance itself. To use Vice-Chair Herlichs language, there is no evidence that “something very recently brought to the employer’s attention had set off the timeliness warning light for the first time.”

34With the greatest respect, the employer’s “clean hands” argument also has no merit. The employer’s position is that the union has no “clean hands” because of the mere fact that it missed the time limit for referral to arbitration. There is no suggestion that the union engaged in any other inappropriate conduct. If the logic is accepted that missing a time limit by itself deprives a union of “clean hands”, and that absence of “clean hands” is a barrier to reliance on waiver, it would follow that waiver could never apply where a union has breached time limits. That makes absolutely no sense, because the very idea behind the doctrine is to relieve against failure to adhere to time limits, where the employer has, with knowledge and intent, waived its right to rely on such breach. And waiver has been applied in a legion of cases for that very purpose.

35In the present case, the evidence establishes that the employer continued to discuss the merits of the grievance with the union, with no mention whatsoever of time limits and with no indication that it considered the grievance to be abandoned. It did so despite the fact that the breach of time limits was obvious, and despite the fact that at one point it had turned its mind to abandonment of the grievance as indicated by the notation in its internal document. Then, even after the late referral to arbitration, the employer proceeded to schedule hearing dates, and to discuss issues related to the merits of the grievance. It did all of this without raising any timeliness issue with the union. Then on the eve of the arbitration it raised a concern about the timeliness of the grievance, and made the objection for the first time at the hearing.

36In the circumstances the Board finds that the employer has waived its right to object to the timeliness of the referral to arbitration. Given that finding, it is not necessary for the Board to deal with the union’s alternate arguments.

37While the employer’s motion is dismissed, this does not necessarily mean that the union`s delay in referral to arbitration is not a relevant consideration is assessing the extent of remedy, should the grievance succeed on its merits. That would depend on the provisions of the particular collective agreement and the evidence. The case law suggests that there is no principle to the effect that waiver of the right to object to the timeliness of the grievance is necessarily a waiver of the right to object to the extent of remedial liability. Thus, in Re Union Gas Co. of Canada Ltd. 1972 CanLII 2020 (ON LA), [1972] 2 L.A.C. (2nd) 45 (Weatherill) it was held that failure to object to the timeliness of a continuing grievance did not amount to waiver of the right to contest the extent of liability in the particular circumstances of that case. At p. 49, the arbitrator wrote:

There have been many cases in which grievances of a continuing nature have been brought and where recovery has been limited to the period coming within the time limits set out in the collective agreement. We are aware of no cases in which acceptance of such a grievance has been held to constitute waiver of the right to contest the extent of liability. In the circumstances, we cannot consider that the company in the instant case can be taken to have waived its right to contest the question of the extent of liability when it received the grievance without raising any objection as to its timeliness. In our view, it is open to the company to rely on the provisions of the collective agreement in arguing as to the question of compensation. In our view, those arguments are sound. In the circumstances, the grievers are not entitled to further compensation than that which they have received.

Therefore, I agree with the employer`s submission that, should the Board find in favour of the union on the merits, it should not be precluded from contesting the extent of the union’s entitlement to retroactive remedies. Should that dispute arise the Board would be prepared to deal with it.

38As a result of the foregoing, the employer’s motion is dismissed. The hearing shall continue as scheduled.