GSB#2010-2436

UNION# 2010-0122-00149

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Moody)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Anne Cumming Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Heather McIvor Ministry of Government Services Legal Services Branch Counsel

HEARING SUBMISSIONS CONFERENCE CALL

April 24, 2012. April 26 and 27, 2012. May 8, 2012.

DECISION

1The Employer has raised a preliminary objection to the jurisdiction of the Board to hear this grievance. It asserts that the Board lacks jurisdiction because the grievance was not referred to arbitration in a timely manner. The Union opposes the Employer’s motion.

Facts

2The relevant facts pertaining to the Employer’s motion are not in dispute, and no evidence was called.

3The grievance was filed on August 4, 2010, and alleges the following:

Management is in violation of Article 2.1 and Article 25.1 of the collective agreement. The employer did not independently or accurately consider my situation using the supporting documents and recommendations of the Medical Profession. Only half of the requested time was granted. I believe that Management acted in bad faith with this decision.

4The words “not limited to these articles” also appears in the written grievance. Article 2.1 is the Management Rights provision, and Article 25.1, Leave-Special, provides that a “[l]eave of absence with pay may be granted for special or compassionate purposes to an employee for a period of: (a) not more than six (6) months with the approval of his or her Deputy Minister.”

5The grievor’s request for paid special or compassionate leave was for six weeks in order to care for her father who was to have hip replacement surgery. The Ministry approved it for three weeks (15 eight-hour shifts), with the remaining time to be covered by vacation or other credits.

6A Stage Two meeting was held on October 29, 2010, and the Employer denied the grievance in writing on November 3, 2010. The grievance was referred to arbitration on January 18, 2011 by Grievance Officer Tim Mulhall, with a copy sent to the Manager, Employee Relations Advisory Services, the Employer contact person.

7A hearing date and Vice-Chair were selected for this grievance at the October 2011 joint file review, and on October 21, 2011, notice of the hearing was issued by the Registrar of the Grievance Settlement Board (GSB) to Grievance Officer Mulhall and Employer Counsel Suneel Bahal. The hearing date was set for April 24, 2012.

8On March 20, 2012, Mr. Bahal wrote to Mr. Mulhall advising that counsel for the Ministry would now be Heather McIvor, and also requesting “all material relating to this matter…along with full particulars.” This was requested “at your earliest convenience in order to allow adequate time to prepare for the hearing date scheduled on April 24, 2012…”

9On April 9, 2012, Anne Cumming, counsel for the Union, wrote to Ms. McIvor advising that her firm had been retained on this matter, and requested production of all particulars and documents upon which the Employer intended to rely, including a number of specific items.

10On April 10, 2012, Ms. McIvor responded to Ms. Cumming. She referred to the March 20, 2012 letter’s request for particulars and stated: “Upon receipt of our request, we will then provide relevant disclosure documents and advise of any preliminary arguments.”

11On April 13, 2012, Ms. Cumming provided the particulars and documents requested, and again requested the information outlined in the April 9, 2012 letter.

12On April 18, 2012, Ms. McIvor provided the requested particulars and responded to the document request. The letter also advises “that the Employer intends to raise a preliminary objection, specifically, that the grievance is out of time.”

13After the hearing in this matter on the preliminary motion, the Union requested leave to reopen the record to present evidence that the instant grievance was discussed by the parties at a mediation/arbitration session involving a number of grievances before Vice-Chair Stephens on August 18, 2011. The Employer opposed that motion, and a conference call was held on May 8, 2012, to hear the parties’ submissions. Based on my consideration of the arguments of the parties, and the case law submitted, I conclude that the motion to reopen the hearing should not be granted. The information about the mediation in August 2011 was information that was in the possession of and available to the Union at the time of the hearing and should have been raised at the original hearing. Re OPSEU (Seager) and Ministry of Community, Family & Children’s Services, GSB No. 1999-1841 (Mikus); Re Unimin Canada Ltd. and United Steelworkers of America, Local 5393 (Davis) [2008] O.L.A.A. No. 188 (Luborsky).

Reasons for Decision

14Section 7.(3) of The Crown Employees’ Collective Bargaining Act, 1993, S.O. 1993, Ch. 38, states as follows:

Every collective agreement related to Crown employees shall be deemed to provide for the final and binding settlement by arbitration by the Grievance Settlement Board, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

15Article 22 of the collective agreement, Grievance Procedure, sets out a procedure for the processing of complaints and differences between the parties. Stage One states that an employee with a complaint “shall meet, if practical, and discuss it with the employee’s immediate supervisor within thirty (30) days…” If the matter is not satisfactorily settled, Stage Two, a written grievance, may occur. Article 23.3.1 states that “the employee may file a grievance, in writing, through the Union, with their immediate supervisor who will in turn forward the grievance to the senior human resources representative for the ministry or his or designee.” The senior human resources representative, or his or her designee, then has fifteen (15) days of the receipt of the grievance to hold a meeting about it, and then “shall give the grievor his or decision in writing within seven (7) days of the meeting with a copy to the Union steward.”

16Article 22.4 provides:

If the grievor is not satisfied with the decision of the senior human resources representative or his or her designee or if she does not receive the decision within the specified time, the grievor may apply, through the Union, to the Grievance Settlement Board (GSB) for a hearing of the grievance within fifteen (15) days of the date he or she received the decision or within the fifteen (15) days of the specified time limit for receiving the decision.

17The collective agreement, Article 22.14.2 provides that “[i]n Article 22, ‘days’ shall include all days exclusive of Saturdays, Sundays and holidays.” Consequently, because the Employer submitted its Stage Two decision in this matter on November 3, 2010, the grievance should have been referred to the GSB by November 24, 2010. It was referred on January 18, 2011.

18The collective agreement also permits the parties to extend the time limits in Article 22 in writing, but there is no evidence that this was done in this case.

19Also relevant are Articles 22.14.1 and 22.14.16 which state:

22.14.1 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.

22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement.

20The GSB thus has the statutory authority to resolve, through arbitration, “all differences between the parties …” The parties, in their collective agreement, established the grievance procedure for bringing such “difference” to the GSB. The collective agreement provides for specific timelines for bringing and processing grievances, as outlined above.

21Under Section 48(16) of the Labour Relations Act, which applies to the GSB, an arbitrator has the power “to 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 …is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension…” The GSB case law, however, is “clear, unequivocal and consistent” that “[n]otwithstanding section 48(16) of the Labour Relations Act, an arbitrator does not have the jurisdiction to extend the time limits in a collective agreement for a referral of a grievance to arbitration.” Re OPSEU (Seager) and Ministry of Community, Family and Children’s Services, GSB 1999-1841 (Mikus, 2003), at p. 12; Re OPSEU (Johnston) and Ministry of Attorney General, GSB 2009-1147 (Dissanayake, 2009); Re OPSEU (Cherry) and Ministry of Finance, GSB 0626/01 (Gray, 2003); Re OPSEU (Goring) and Ministry of Community Safety and Correctional Services, GSB 2008-1661 (Briggs, 2010).

22The real question presented by this case is whether the Employer may waive its objection to an untimely referral to arbitration. The Employer asserts that the Union’s failure to timely refer a grievance to arbitration is jurisdictional, not procedural, and cannot therefore be waived. It submits that without a properly referred grievance, this Board has no jurisdiction over the grievance. It cites to Re OPSEU (Dales) and Ministry of Correctional Services, GSB 1280/00 (Mikus, 2002); Re Ontario Power Generation and Society of Energy Professional (Health Statement Grievance) (2004), 2004 CanLII 94762 (ON LA), 137 L.A.C. (4th) 44 (Goodfellow); Re Algonquin College and OPSEU, Local 4156 (FSL Grievance) (2001), 2001 CanLII 62121 (ON LA), 100 L.A.C. (4th) 234 (Knopf), and Re Atomic Energy of Canada Ltd. and Society of Professional Engineers and Associates (1994), 1994 CanLII 18598 (CA LA), 41 L.A.C. (4th) 310 (Knopf).

23In the alternative, the Employer submits that under the facts, it did not waive its objection to the Union’s failure to refer the grievance in a timely manner. It submits that its conduct cannot be inferred to have relinquished its objection. It advised the Union that the Employer would, upon receipt of the Union’s particulars, identify any preliminary arguments it might raise. Counsel then did so within days of receiving the Union’s particulars. It submits that no “fresh step” had been taken and the Union was advised of the objection as soon as counsel received the Union’s particulars and documents. In support it cites to Re OPSEU (Ireland et al.) and Ministry of Community Safety and Correctional Services, GSB 2007-2368 (Briggs, 2011).

24The Union asserts that its failure to refer the grievance within the fifteen day time limit was a procedural defect which the Employer waived by agreeing to the hearing date at joint file review, discussing the case through correspondence and not raising an objection until April 18, 2012 – six days before the hearing. It submits that the Employer, at all relevant times, knew of the late referral, and learned nothing new through the Union’s particulars. The Union submits that through the Employer’s silence, it led the Union to believe that jurisdiction would not be in issue, and that the Board must given meaning to that representation. It contends that the Employer should not be allowed to “sit on its hands” and waste the parties’ and Board’s time and resources by asserting a jurisdictional issue at this time. In support of its position, the Union cites to Re OPSEU (Union Grievance) and Ministry of Community Safety & Correctional Services, GSB 2003-3075 (Herlich, 2005); Re Amalgamated Transit Union, Local 1587 (Union Grievance) and Ontario (Metrolinx-GO Transit), GSB 2010-2210 (Dissanayake, 2012).

25It is notable that in Re OPSEU (Ireland), supra, the same issues arose, but Vice-Chair Briggs determined that she could rule, based on the facts, that the Employer did not waive its right to object to the timeliness of the referral to arbitration, and thus was able to “avoid that matter of determining whether the doctrine of waiver as argued by the Union applies in this situation.” It appears to me that, under the facts of this case, the issue must be addressed.

26Waiver, according to Palmer in Collective Agreement Arbitration in Canada, at p. 164, is a common law doctrine which arises in “situations where failure to make timely objection to non-compliance with the procedural requirements of the grievance procedure prevents the objection from being raised later.” In contrast, fundamental issues of jurisdiction – substantive arbitrability – cannot be waived, and may be raised at any time. This distinction was noted in Re OPSEU (Dales), supra at p. 8, where the Board determined:

There is no question that a party can waive its right to object to procedural irregularities in the processing of a grievance. If a party allows the other side to continue without alerting it to a forthcoming objection, it risks being estopped from doing so later. However, a party cannot waive an objection to the jurisdiction of the Board.

27The issue in this case, therefore, is whether the time limit for referral to arbitration is a “procedural” matter, or a “substantive” one. Having carefully considered the jurisprudence and arguments of the parties, I conclude that the time limits for referral to arbitration are procedural, not substantive, and may be waived.

28Traditionally, time limits in the grievance procedure have been viewed as procedural matters, which may be waived. As set out in Brown and Beatty, Canadian Labour Arbitration, at p. 2-107, cited in Re Amalgamated Transit Union – Local 1587 and Ontario (Metrolinx – GO Transit), supra at par. 27, in relevant part:

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 or and an intention to forego the exercise of such a right. …

[B]y 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.

29Similarly, Palmer, in Collective Agreement Arbitration in Canada, at p. 165, (citations omitted) states: “Failure to comply with mandatory time limits in the collective agreement, filing of a grievance as a policy rather than an individual grievance, defects in the form itself and failure to proceed through all the specified steps of the grievance procedure have been held to be procedural irregularities which can be waived.”

30The Employer accepts that a failure to follow mandatory time limits in the grievance procedure may be procedural, but asserts that at the arbitration stage, it becomes substantive. The distinction, it submits, is based on Section 48(16) of the Labour Relations Act, which empowers arbitrators to extend mandatory time limits in the grievance procedure, but not a referral to arbitration. With respect, I cannot agree.

31While it is true that Section 48(16) of the Labour Relations Act applies only to the grievance procedure, and not a referral to arbitration – at least under the parties’ collective agreement – the absence of such a statutory provision does not change the nature of a time limit. It remains procedural, and is subject to waiver. The absence of statutory authority to extend the time limits does not change an untimely referral into a matter of fundamental, substantive jurisdiction that cannot be waived.

32Prior to the amendments of the Ontario Labour Relations Act which empowered arbitrators to relieve against mandatory time limits, the doctrine of waiver applied. Arbitrators would analyze whether or not the time limits were mandatory or directory. If they were directory, arbitrators could generally hear the grievance. If they were mandatory, the arbitrator would have no jurisdiction unless the objection had been waived. As set forth in Palmer, supra at p. 156-157 (citations omitted):

Before the amendment, however, a failure to meet the mandatory time limits set out in the collective agreement meant that the arbitrator had no jurisdiction to deal with the merits of the case. The general principle has been stated as follows:

… [T]here is a wealth of authority to establish that where a mandatory grievance procedure is set forth in a collective agreement, the grieving party must follow it meticulously, unless the other party has waived one or more of the requirements set forth in that procedure, and that in the absence of such waiver, the grievance is not arbitrable and the arbitrator is therefore debarred of jurisdiction to entertain it….

As mentioned in this quote, the other party can waive mandatory grievance procedure requirements. Without waiver, the provisions will be strictly applied.

33The enactment of the predecessor to Section 48(16) eliminated the need to analyze whether a time limit provision was mandatory or directive, but it did not eliminate the doctrine of waiver. Nor was waiver eliminated by the amendment that removed arbitration from the ambit of the provision. The legislation also did not transform time limits for referral from a procedural issue into a substantive one.

34There is no question that a timely referral to arbitration under the parties’ collective agreement is mandatory, not directory. This is clear from Article 22.14.1 which states that “[w]here a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.” This creates a mandatory requirement, and specifies the consequences for failure to comply. As concluded by the Board in Re OPSEU (Cherry), supra at par. 13: “A grievance that has been withdrawn is not arbitrable.”

35The decision in Re OPSEU (Cherry), supra, however, does not determine the issues in this case. The Vice-Chair there was correct when he stated at par. 16 that the collective agreement “gives the GSB no power to extend the collective agreement’s time limit for referring his grievance to arbitration” nor was that power conferred by any provision in the Crown Employees Collective Bargaining Act or the Labour Relations Act. But in that case, the issue of waiver did not arise, nor was it argued. Under the facts, upon referral of the grievance to arbitration, the “Ministry promptly advised the union that it was objecting to the referral on the basis that the grievance had not been referred to arbitration within the mandatory time limits set out in Article 22.4 of the Collective Agreement. “ (Par. 10). Consequently, the fact that the Board cannot extend the time for referral under Section 48(16) of the Labour Relations Act does not mean that the Employer cannot waive its objection to an untimely referral, and Re OPSEU (Cherry), supra, does not stand for that proposition.

36Consequently, there is no basis to conclude that time limits in relation to the grievance procedure are procedural while time limits in relation to a referral to arbitration are substantive. As a purely conceptual matter, there is no basis to distinguish time limits at the two stages of the grievance arbitration process. The fact that there is no statutory power under Section 48(16) of the Labour Relations Act does not transform compliance with the time limit for referral to arbitration into a substantive arbitrability matter. Whether time limits have been met still goes to procedure, not substance, and procedural requirements may be waived. Substantive arbitrability, in contrast, involves a fundamental issue of jurisdiction.

37In Re Ontario Power General and Society of Energy Professionals (Health Statements Grievance), supra, an issue of substantive jurisdiction was raised in closing arguments, after the completion of a four-day hearing on the merits. Specifically, the Employer argued that the grievance – which challenged the Employer’s requirement to have applicants for employment complete a detailed health questionnaire – was inarbitrable because the Union did not, and could not, represent applicants. The arbitrator concluded at par. 5 that as applicants, “they are not covered by the Society collective agreement and the Society would appear to have no right to speak on their behalf.” Accordingly, there was “no possible foundation for the grievance and nothing over which I could possibly have jurisdiction.” While the arbitrator was highly critical of the employer for bringing such a motion “extremely belatedly”, he nonetheless determined that it could not be waived. He concluded at par. 9:

Finally, it is clear that, as a fundamental objection to jurisdiction, this issue is one that can be raised at any time. The strong majority of the case law concludes, rightly in my view, that such objections can neither be waived nor made the subject or an estoppel by a failure to raise them in a timely way…. Jurisdiction is a matter of law, not equity, and while an employer can expressly agree not to pursue a specific jurisdictional point or, indeed, can expressly agree to confer on an arbitrator certain kinds of jurisdiction that he or she might not otherwise possess, it cannot be held to have doe so simply by an act of omission or by a failure to raise an objection at an early stage in the proceedings.

38To the same effect is the decision of Vice-Chair Mikus in Re OPSEU (Dales), supra, and Arbitrator Knopf in Re Atomic Energy of Canada Ltd. and Society of Professional Engineers and Associates, supra.

39In this case, there is no dispute that the subject matter of the grievance is substantively arbitrable. The only issue is the timeliness of the referral to arbitration. As a procedural matter, as opposed to a substantive one, objection to the timeliness of the referral may be waived.

40Consequently, I must determine whether the Employer waived its objection to the Union’s late referral to arbitration in this case. Applying the Board’s jurisprudence to the facts of this case, I conclude that it did waive any objection it might have raised.

41The notion that the Employer did, in fact, take a “fresh step” when it agreed to schedule the grievance for hearing, without raising any objection, is consistent with the authorities. In Re OPSEU (Union Grievance), supra, Vice-Chair Herlich was faced with an objection that the grievance was not filed in a timely manner (as opposed to an untimely referral to arbitration) and should be dismissed. The Union responded that the grievance was a continuing grievance and, therefore, was in fact timely. It also asserted that the Employer waived any right to object to the timeliness of the grievance because it had scheduled the matter through the Joint Review Process. The Board accepted both reasons for denying the Employer’s preliminary objection.

42On the issue of waiver, the Board quoted, at par. 27, from Brown & Beatty, Canadian Labour Arbitration, regarding the doctrine of “waiver of procedural irregularities”:

In its application, waiver is a doctrine that parallels the one utilized by the civil courts known as “taking a fresh step”, and hold that by failing to make a time objection and by “treating a 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 non-compliance, and any objection as to arbitrability will not be sustained. …Where, however, the objection to timeliness is made at the earliest opportunity, even if it is not made in writing, it will preclude a finding that the irregularity was waived.

43In that case, the evidence established that the grievance was filed on October 15, 2003. No Stage Two meeting was held and there was no Employer response to the grievance. On November 28, 2003, the Union advised the Employer and the Registrar of the GSB that it was referring the grievance to arbitration. On June 9, 2004, the matter proceeded to the Joint Review Process under the collective agreement and a hearing date of December 14, 2004 was scheduled. It was adjourned and then rescheduled for March 22, 2005, and the Employer first raised the issue of timeliness on March 14, 2005.

44Vice-Chair Herlich determined at par. 42 that “[t]here is no doubt in my mind that, in the present case, the Employer’s 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.” He continued: “At a minimum, the Employer’s 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.”

45Based on the facts there, he found no such justification. The Employer learned nothing new in the Union’s particulars that would have alerted the Employer, for the first time, that a timeliness issue existed. He concluded at par. 49:

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.

46Applying the holding reached in Re OPSEU (Union Grievance) to the facts of this case, as I am required to do under Re Blake et al. and Amalgamated Transit Union, GSB No. 1276/87 (Shime, 1988), I conclude that the Employer waived any objection to the timeliness of the referral of the grievance to arbitration. The Employer knew, at the time of the referral, that the referral was late. It knew that at the joint file review process, when the hearing was scheduled. It learned nothing new from the Union’s particulars in terms of the late referral that it did not know earlier.

47To the same effect is the recent decision in Re Amalgamated Transit Union- Local 1587, supra. In that case, Vice-Chair Dissanayake dealt with the issue of waiver in the context of a late referral to arbitration. In his ruling he proceeded “on the assumption, without determining, that the time limit for referral to arbitration in the collective is mandatory” and could be waived. No argument was raised that it was a jurisdictional issue. Vice Chair Dissanayake determined at par. 28, that waiver need not be explicit, but may be inferred by conduct. He described the test as an “objective” one – “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 so, “then intention to waive time limits would be inferred.” Based on the facts there, he determined that the Employer had waived any objection.

48This approach requires the Employer to raise objections to arbitrability based on an untimely referral to arbitration at the Joint File Review (JFR) process, or prior, before a “fresh step” is taken. Although it has been my understanding that the focus of the JRF process involves the administrative action of scheduling and, given the volume of cases, both sides may not turn their minds to a case until shortly before the hearing, as occurred here, after Re OPSEU (Union Grievance), the Employer was on notice that the GSB viewed scheduling a hearing at JFR as a “fresh step” as it relates to the doctrine of waiver. While the Employer may have viewed that decision as applying strictly to objections based on the timeliness of filing a grievance, as opposed to referrals to arbitration, it is my view it must apply in both situations.

49Therefore, based on the facts and jurisprudence, it is my conclusion that the Employer waived its objection to the timeliness of the referral by taking a “fresh step.”

Conclusion

1. The timely referral of a grievance to arbitration is a procedural matter, and therefore may be waived.

2. The Employer, based on GSB case law, waived its objection to the Union’s delay in referring the grievance to arbitration.

3. Accordingly, the Employer’s preliminary motion to dismiss the grievance must be dismissed. The matter is referred to the Registrar for scheduling a hearing on the merits.