GSB#2011-2472

UNION#2010-0154-0033

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Flannery)

Union

• and -

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

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Mihad Fahmy Peggy Smith Barristers & Solicitors Counsel

FOR THE EMPLOYER

Caroline Cohen Ministry of Government Services Legal Services Branch Counsel

HEARING

September 18, 2013

Decision

1On March 4, 2010, the Grievor, Robert Flannery, filed a grievance asserting that the Employer violated Articles 2, 3, 9, 10, 31, 41 and 44 of the collective agreement “and any other articles and/or legislation” because “management filed the original claim but failed to report surgery and lost time to WSIB.” The surgery and lost time that the grievance refers to occurred in 1991. The Employer has moved to dismiss the grievance on the basis that the grievance is untimely. The Union opposes that motion.

Facts

2For the purposes of this motion only, the parties agreed to the following facts:

1. The Grievor, Robert Flannery, is an Income Support Specialist for the Ontario Disability Support Program, Southwest Region (Windsor Office), Operations Division, Ministry of Community and Social Services. He was hired into this role on May 1, 1989. The Grievor is 57 years old (and is eligible for pension at age 65).

2. The Grievor suffered a WSIB-approved workplace injury on December 3, 1990. This initial injury was duly reported to the WSIB by the Grievor, the Employer and his physician.

3. The Grievor’s claim is governed by the “pre-1992” workers compensation legislation.

4. In the year following the work injury (September 1991), the Grievor underwent surgery, specifically a cervical discotomy and decompression. After resuming regular work in late 1991, the Grievor continued to perform regular work through 1992, 1993, and 1994, with absences associated with continued neck and shoulder pain.

5. The Grievor would say that his then supervisor, Ms. Edna Sexsmith, advised him that it was sufficient for him to notify her of his absences and that she was aware they were related to his injury and accident. The employer is not in a position to agree or disagree due to the retirement of Ms. Sexsmith, the passage of time and the lack of documentation in the file on this issue. The parties acknowledge that the grievor is obliged to report all lost time to the WSIB.

6. Ms. Edna Sexsmith has now retired from the Ministry.

7. The Grievor’s two subsequent supervisors have retired from the Ministry.

8. The Grievor would say that following his return to work after the 1991 surgery, he requested workplace accommodations, including a chair with a headrest. The employer is not is a position to agree or disagree due to the retirement of Sexsmith, the passage of time and the lack of documentation in the file on this issue. The parties agree that the grievor’s current personnel file contains no medical information form 1991-1994 and no request for accommodation regarding his 1990 injury or 1991 surgery or subsequent to such surgery.

9. In March 1994, the Grievor contacted WSIB about his absences in 1991. In a letter dated March 28, 1994 from WSIB (attached), the Grievor was requested to contact his employer and have them submit to WSIB all lost time and earning with respect to his neck area from December 1990 to date.

10. The Grievor responded to this letter on March 31, 1994 reporting his lost time (attached). He gave a copy of the March 28, 1994 letter to the employer, who on June 9, 1994 submitted the lost time information to WSIB (attached).

11. Prior to March 1994, neither the Grievor, the employer nor his physician had reported his absences in 1991 to the WSIB, due to surgery as work-related. He received STSP for these absences.

12. The following dates were reported to the employer by the Grievor as”sick” (see attached documentation

(a) December 4, 1990

(b) August 28, 1992

(c) March 5, 1993

(d) April 29, 1994

(e) May 31, 1994

13. The lost time from 1990-1994 which the Grievor claimed were WSIB-related were listed on his pay stubs as “STS” (Short Term Sickness)

14. The employee’s attendance records record the relevant absences as follows (see attached documentation) “W4” refers to “WSIB approved”. The document covering the 1991 absences are marked as “amended” although the employer does not know when, by whom or why it was amended, particularly as the WSIB has never made a determination on whether this lost time is related to the original injury.

[Chart omitted]

15. In his June 9, 1994 report, Claims Investigator B. Russell found that the Grievor’s surgery and resulting lost time had not been reported to the Workers’ Compensation Board. (see attached.)

16. The Grievor would say that he did not receive Mr. Russell’s 1994 report until 2010, when he requested his full file from the WSIB.

17. On March 4, 2010, the Grievor filed grievance #2 regarding the way that the employer initialed handled the Grievor’s claim in 1990-1995, alleging a violation of articles 2, 3, 9, 10, 31, 41 and 44 by failing to report the 1991 surgery and lost time to WSIB. The relief claimed is “to be issued a monetary award in relation to lost FEL, Potential Revenue Canada Income, vacation credits, damages.”

3From the March 28, 1994 letter to the Grievor from the Workers’ Compensation Board (WCB) Claims Adjudicator, it is apparent that the Grievor had advised WCB of his 1991 surgery and that there was additional time he lost from work due to that surgery. The letter states:

Dear Mr. Flannery:

I have received your message with respect to your request for further entitlement in your claim file and I have now received your correct address. Before further consideration can be given in your claim file with respect to any further lost time and health care benefits as well as a possible award under our non-economic loss policy, the following information is needed.

What is needed is all medical information pertaining to your neck disability, dates of treatment from December 3, 1990 to date.

When and where the surgery was performed as well as the name of the specialist that performed the surgery, and any appointments that you had with this individual. I ask that you please note the attached waivers for your signature so that I may be able to obtain the necessary operative reports. Please contact your employer and have them submit to us all lost time and earnings with respect to your neck area form December 3, 1990 to date.

Once this information is obtained, I will be in a better position to review your file with respect to ongoing entitle[ments].

4On March 31, 1994, the Grievor responded to the letter and listed the dates that he missed work due to his neck injury. On June 8, 1994, the Ministry provided the Claims Adjudicator with a listing of the dates the Grievor missed work due to his injury in 1991 as well as a number of dates he claimed as sick days between 1990 and May 31, 1994. The Grievor was copied on this letter from the Ministry. There is no claim that he did not receive it.

5On June 9, 1994, Claims Investigator Russell wrote a report concerning the Grievor’s claim for additional benefits. It reveals that he interviewed the Grievor for more than an hour on June 8, 1994 and Ms. Sexsmith on June 9, 1994. It notes that he was still waiting for information (and a written request for treatment information) from the Grievor’s family physician and attending physician. He noted that the neurosurgeon’s office “had been contacted and copies of all consultation reports have been requested.” Information had also been obtained from Hospital Hotel Dieu in Windsor, where the surgery occurred. The document states, under the section “Work History and Complaints”, as follows:

It is unclear as to why the scheduled surgery in late 1991 was not reported to Workers’ Compensation Board, but Mr. Flannery notes that Mrs. Sexsmith was also aware of the scheduled surgery and the fact that lost time resulting from the surgery should have been reported to Worker’s Compensation Board.

The notes of the interview with Ms. Sexsmith, however, state that although she was aware that he had been “booked for surgery”, “before that surgery took place, she was reassigned from the Chatham Office to the Windsor office. She does not know, therefore, why Mr. Flannery’s work absence in late 1991 went unreported …”

6It is not clear from this document if it is an internal WCB document, or it was sent to the Grievor. His name and address appear on the first page of the document, but it is not clear whether it was sent to him. According to counsel for the Union, the Grievor was undergoing a marital separation at this time, and he had moved to another residence. According to the Agreed Facts, the Grievor did not receive this document until he requested his entire WCB/WSIB file in 2010.

7There is no evidence concerning any follow-up by the Grievor with the WCB, after his interview on June 8, 1994 through 2010 concerning his inquiry about additional benefits based on his 1991 surgery and the lost work time that resulted.

Reasons for Decision

8Upon review of the facts and the case law submitted by both parties, I conclude that the grievance is untimely and that this is not an appropriate case to exercise my jurisdiction under Section 48(16) of the Ontario Labour Relations Act to extend the time in which to file a grievance.

9The parties, in the collective agreement, have provided for strict timelines for the processing of grievances with the view “to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of [the] agreement, including any question as to whether a matter is arbitrable.” Under Article 22.2.1, an employee has thirty (30) days “after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee” to bring the matter up for discussion with management.

10The Union first contends that the Grievor was unaware that the Employer did not report his 1991 surgery and time lost to WCB until 2010, when he requested and obtained his full WSIB file. It submits that the time line for filing a grievance should start to run then. He requested and received the file in February 2010. His grievance was filed on March 4, 2010.

11Based on the evidence presented, I cannot accept that contention. Under Article 22.2.1, if an employee has a complaint, he must meet and discuss it with the immediate supervisor “within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint.” Consequently, even if the Grievor did not see the Claims Adjudicator’s June 1994 report until February 2010, the Employer’s failure to report his surgery to WCB came to his attention, or ought reasonably have come to his attention, in 1994.

12It appears from the March 28, 1994 letter from WCB that the Grievor was aware, or should have been aware, that WCB was not informed about his 1991 surgery or the lost work time that resulted. The Claims Adjudicator wrote that in order to process the grievor’s claim for “further lost time and health care benefits as well as a possible award under our non-economic loss policy” additional information was needed. Specifically, he needed to know “when and where the surgery was performed as well as the name of the specialist that performed the surgery.” He also requested that the Grievor “contact your employer and have them submit to us all lost time and earnings with respect to your neck area from December 3, 1990 to date.” The only possible explanation for that letter is that the Grievor informed WCB that he might be entitled to additional benefits because of the surgery he had in 1991, and that the WCB did not already have that information in its files. If WCB already had that information, it would not have asked the Grievor to provide this information to them. In my view, the March 28, 1994 letter clearly demonstrates that the Grievor knew, or ought reasonably to have known, that the Employer had not reported his 1991 surgery to WCB, or the time he lost from work because of it.

13The matter did not end there. The Claims Adjudicator met with the Grievor for more than an hour on June 8, 1994. He also met with Ms. Sexsmith on June 9, 1994. The Grievor signed releases so that his medical information could be obtained from his doctors as well as Hotel Dieu Hospital in Windsor where the surgery occurred. The Grievor was aware that WCB was actively looking into his claim of additional entitlements based on the surgery. The focus of that investigation was the 1991 surgery and whether it was related to his December 1990 injury. These facts do not support a contention that the Grievor was unaware that the Employer had not reported his 1991 surgery and time lost to WCB until 2010.

14The evidence also shows that the Grievor showed Ms. Sexsmith the March 28, 1994 letter and asked her to respond, which she did on June 8, 1994. The Grievor was copied on that response, and there is no claim that he did not receive it. Consequently, if he felt that the information the Employer provided was incomplete or inaccurate, he knew about it on or about June 8, 1994.

15Consequently, under Article 22.1 of the collective agreement, the Grievor knew or should have known the circumstances giving rise to the complaint raised in the grievance on either receipt of the WCB’s March 28, 1994 letter or upon receipt of Ms. Sexsmith’s June 8, 1994 letter. His grievance was filed on March 4, 2010. It is sixteen years late.

16The Union asserts, however, that I should exercise my discretion under Section 48(16) of the Ontario Labour Relations Act to extend the time for filing a grievance. That provision states:

(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 a 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 the opposite party will not be substantially prejudiced by the extension.

17As set out in Re OPSEU (Mazara Grievance) and Ministry of Community Safety and Correctional Services, 215 L.A.C. (4th) 336 (Gray) at par. 12, the GSB has followed the criteria set out in Re Becker Milk Company Ltd. and Teamsters Union, Local 647 (1968), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217, at 220-221:

The exercise of the equitable discretion vested in an arbitrator under s.37(5a)[now 48(16)] of the Act requires a consideration of at least three factors. These are: (1) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance. 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 exists for an extension of the time-limits. …The purpose of the section is to alleviate against technical bars. If the offending party has been negligent in its process of the grievance but the delay has been of a short duration an arbitrator would be permitted to rely on the short period of delay as constituting reasonable grounds for an extension. If the grievance involves the termination of an employee, as distinct from some lesser form of discipline, this is also an equitable consideration which must be taken into account…

18Vice-Chair Gray further noted that the GSB has also referred to Re Greater Niagara General Hospital (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff), which adds three more considerations: whether the delay occurred initially launching the grievance or at some later stage; whether the grievor was responsible for the delay; and whether the employer could reasonably have assumed the grievance had been abandoned.

19The Union argues that the nature of the grievance raises “serious human rights claims” because the Grievor alleges that he was not accommodated properly as well as “health and safety issues.” The Agreed Facts, at par. 8, state that following his return to work after the 1991 surgery, he requested workplace accommodations, including a chair with a headrest.” They continue that the Employer is “not in a position to agree or disagree due to the retirement of Ms. Sexsmith, the passage of time and the lack of documentation in the file on this issue.”

20It certainly is not clear from a reading of the grievance that it raises an accommodation issue on the basis of disability or important health and safety issues. It contests the fact that although management filed the original WCB claim it “failed to report surgery and lost time to WSIB.” The remedy requested was “to be issued monetary award in relation to lost FEL, potential revenue Canada income and vacation credits” as well as “damages.” The grievance cites a number of provisions of the collective agreement, including Article 3, the “No Discrimination” provision, and Article 9, Health and Safety, but it completely fails to mention accommodation or any health and safety issue.

21The grievance, in my view, is about the Employer’s failure to report the 1991 surgery and time lost to WSIB. That is a monetary issue, and thus the “nature of the grievance” does not support an extension of the time period in which to file a grievance.

22Assuming without concluding that the grievance could be read to include an accommodation issue, it is not clear why a grievance could not have been filed about that in 1991. He was clearly aware of the accommodation (or any health and safety) issues then. He did not first learn about them in 2010.

23The Union also asserts that the Grievor was unaware that he could file a grievance on the WSIB issue, and that he was afraid for his job if he did because he thought it would get his supervisor into trouble. No evidence was led on this point, but even accepting it as true does not warrant an extension of the time limits. Article 22.1 not only pertains to complaints or differences concerning the application and administration of the collective agreement, but also “any question as to whether a matter is arbitrable.” If the Grievor had some doubts about whether he could file a grievance, he should have filed one and the issue of arbitrability could have been addressed. His concern about arbitrability does not excuse his failure to file a grievance.

24In terms of his fear for his job and his supervisor, according to the June 1994 report, Ms. Sexsmith was reassigned to Windsor from the Chatham office before his surgery took place. There is no indication in regard to who his supervisor was at the relevant time. Paragraph 7 of the Agreed Facts only states that he or she has since retired, as did the supervisor who followed. Surely after the person responsible retired, the matter could have been grieved without risk to the Grievor or the responsible supervisor. In my view, these are not “reasonable grounds” for an extension until 2010.

25Vice-Chair Gray rejected a similar argument in Re OPSEU (Monk) and Ministry of Community Safety and Correctional Services [2012] O.G.S.B.A. No. 32, at par. 20. He determined that “[w]hile an allegation that the employer threatened reprisal if a grievance was filed might, if true, afford reasonable grounds for some modest extension of the time for filing the grievance, it must be otherwise when years unexplainedly pass before the complaint about alleged threats of reprisal is raised.” Here, there is no assertion that the Employer threatened reprisal – just that the Grievor was afraid of that – and this claim was not raised prior to the hearing in 2013.

26The Union asserts that there was no intentional delay and no bad faith. But there certainly was no due diligence displayed by the Grievor. The Agreed Facts state that “the WSIB has never made a determination on whether this lost time is related to the original injury.” The record is silent, however, in regard to any efforts the Grievor made, after June 1994, to follow-up with WCB in regard to his claim for additional benefits. In March 1994, he initiated an inquiry with WCB about additional benefits because of his 1991 surgery. He followed up in writing and had an interview with them. Information was provided to WCB by the Employer and his doctors. Yet there is no evidence that the Grievor took any steps to learn the results – until 2010. On the facts presented, from June 1994 to February 2010, the Grievor did not follow up with WSIB. Had he done so earlier, he would have obtained the June 1994 report from which he allegedly learned that the Employer had not reported his surgery or time lost. Consequently, the Grievor failed to exercise due diligence in learning the facts concerning his WSIB claim and the responsibility for the delay rests squarely on the Grievor’s shoulders.

27The Union further contends that the Employer must show “substantial prejudice” to deny an extension of time under Section 48(16). The provision does state that the arbitrator must be satisfied that there “are reasonable grounds for the extension and that the opposing party will not be substantially prejudiced by the extension.” The Union cites to Re Union of Needletrades, Industrial and Textile Employees and Saint-Gobain Technical Fabrics, Canada Ltd. (Parker Grievance) [2005] O.L.A.A. No. 625 (Chapman), for the proposition that some prejudice is acceptable and that there must be “substantial” prejudice. It submits that the Employer has not shown that Ms. Sexsmith is unavailable or that she cannot recall the events in question.

28Putting aside the question of whether the Union has demonstrated “reasonable grounds for an extension”, which is a requirement of the provision, the Agreed Facts demonstrate substantial prejudice. In addition, so much time has passed that prejudice can be presumed. Re OPSEU (Sidhu) and Ministry of Community Safety and Correctional Services [2007] O.G.S.B.A. No. 144 (Abramsky), at par. 52. The Agreed Facts, at paragraph 5 assert that the Grievor would say that his then supervisor, Ms. Edna Sexsmith, “advised him that it was sufficient for him to notify her of his absences and that she was aware they were related to his injury and accident” and that “the employer is not in a position to agree or disagree due to the retirement of Sexsmith the passage of time and the lack of documentation in the file on this issue.” In paragraph 8, it states that “the grievor’s current personnel file contains no medical information from the 1991-1994” period. In paragraph14, it states that the 1991 absences are marked “amended” although the employer does not know when, by whom or why they were amended. All of this is clearly prejudicial to the Employer’s case.

29In my view, it is simply unreasonable to ask someone to recall a conversation, in 2013 (or 2014 by time the hearing on the merits could be heard) about a conversation that allegedly took place in 1990 or 1991. That is twenty-three or twenty-four years ago. There is information missing – such as the medical information from 1991-1994 – and no way to ascertain why the Grievor’s attendance records were “amended.”

30In Re OLBEU (Gamble) and Liquor Control Board of Ontario (1998), GSB No. 1635/96 (Gray), the Board declined to extend the time limit for the filing of a discharge grievance for two years. The Board determined at par. 25 that there was “no identifiable element of specific prejudice resulting from the delay: no demonstrably needed witness who has died or otherwise become unavailable in the meantime, no arguably relevant document that has been destroyed or lost.” That did not mean, however, that there was no prejudice. He continued at par. 26

The prejudice caused by delay may also be more subtle and, by its nature, difficult to demonstrate. The memories of witnesses who are still available will nevertheless have faded, particularly if there has been no notice that they may have to testify about those memories. As a result their testimony many be or may seem less reliable, and thence less persuasive, than it would have if there had been timely notice of the dispute. Those now concerned with the dispute may not be able to determine what testimony or documents would have been discovered and preserved earlier, had there been timely notice of the dispute. They may not know what statements would have been given at the time by those witnesses whom they can not identify, or what might have been found in documents known to have existed but that have since been destroyed. Indeed, they may not now know of or discover helpful witnesses or relevant documents whose existence would have been discovered had timely assertion of the dispute triggered an earlier search for them….

The same conclusion was reached in Re Richard Mroz and Ministry of Community Safety and Correctional Services, P-2010-2013 (O’Neill), at par. 37 and the cases cited therein.

31All of these factors are present in this case. The delay was in the initial filing of the grievance so there was “no notice that they may have to testify about those memories.” The available documents are incomplete, and the Employer has no ability to determine who “amended” the records, or why. The Employer’s ability to defend its actions clearly has been significantly prejudiced by the passage of so much time.

32As stated in Re OPSEU (Sidhu), supra at par. 52, “the key is the ability of both sides to have a fair hearing.” Where the delay is extreme – there it was eight years – the “employer’s ability to investigate and defend against the grievor’s claims from 1996 has been irreparably prejudiced.” The same is true here.

Conclusion

33For the reasons set out above, I conclude that the grievance was not timely filed under the collective agreement, and there is no basis to exercise my discretion to extend the time for filing the grievance under Section 48(16) of the Labour Relations Act. The Employer’s preliminary motion to dismiss the grievance is granted.