GSB#2014-2270

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Mazareanu)

Association

• and -

The Crown in Right of Ontario (Ministry of Economic Development, Employment and Infrastructure)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Kelly Doctor Sack Goldblatt Mitchell LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 18, 2015

Decision

1The employer has asked that I dismiss the dispute filed by the Association in this matter as untimely. The Association acknowledges that the dispute was filed beyond the time contemplated by the collective agreement. Both parties agree, however, that I have the discretion to extend the time limit in question and to thereby dismiss the employer’s preliminary motion. They disagree as to whether I ought to exercise that discretion.

2The parties also agreed that, if I were persuaded to exercise my discretion as urged by the Association, they were content for me to do so by way of a summary decision. This is that.

3Neither the facts nor the law in this case were the subject of significant dispute between the parties.

4With respect to the facts, I need say nothing more than the dispute was filed six working days beyond the 30 working days time limit set out in the agreement.

5The parties also agreed that chief among the factors to be considered in the exercise of my discretion are the following:

• The reasons for the delay
• The length of the delay
• The nature of the grievance
• The resulting prejudice, if any, that would be visited on the employer

6(These factors are extracted from the oft-cited decision in Re Becker Milk Company Ltd. and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett) and expanded upon in Greater Niagara General Hospital and Ontario Nurses’ Association (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff) and confirmed in a decision of this Board in OPSEU (Stone) v Clean Water Agency GSB File No. 1111/99, March 19, 2001 (Johnston).)

7In the instant case, the employer concedes that it would suffer no prejudice from the delay should the matter proceed and also acknowledges that the nature of the grievance (one where the complainant’s continuing employment may hang in the balance) militates in favour of extending the time limit.

8The employer was not inclined to make a similar concession with respect to the length of the delay. Despite that, I am satisfied that the delay in the instant case (six working days) is relatively marginal and equally favours the extension of time limit.

9It is in respect of the reasons for the delay that the employer makes its strongest argument. The reasons for the delay are not compelling, although any one of the proffered reasons (such as change in assignments of Association personnel impeding timely communications or the complainant’s efforts to secure further basic information from the employer) might easily explain a six-day delay.

10In any event and even accepting, as I do, that the reasons for the delay in this case were less than compelling, I am satisfied that when one considers all of the relevant factors as a whole, this is a case where I ought to and hereby do exercise my discretion to extend the relevant time limit.

11Having regard to the foregoing, the employer’s motion is hereby dismissed. The parties should contact the Registrar for the purpose of setting further hearing dates.