GSB#2012-4253, 2013-2273

UNION#2012-0545-0044, 2013-0545-0036

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kaltagian)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Rosie Basa Dewart Gleason LLP Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 13 and 14, 2015

Decision

1The grievor, Mr. Sevag Kaltagian, had filed two grievances, one in 2012 and the other in 2013. When the hearing convened on April 13, 2015, the parties agreed to deal with a preliminary motion by the employer objecting to the Board’s jurisdiction with respect to the 2013 grievance (GSB file number 2013-2273). The motion is to the effect that the grievance was referred to arbitration outside the time limits set out in the collective agreement, and is therefore inarbitrable. This decision determines that motion. It is sufficient for purposes of the motion to note that the grievance at issue raises a number of issues including discrimination, harassment, bullying exposure to unsafe and poisoned work environment, unjust discipline and constructive dismissal.

2Some history is required to put the employer`s motion into context. Initially only the 2012 grievance was scheduled for arbitration on February 26, 2014 by notice of proceeding dated August 8, 2013. Then by a revised notice of proceeding dated November 13, 2013, the instant grievance was added. Both grievances came before me at the hearing convened on February 26, 2014. Mr. Parris was counsel for the employer and Ms. Megan Reid for the union. The parties agreed to use that day for mediation. My notes confirm that the mediation was confined to an allegation by the union that the employer had failed to comply with its obligations under an interim agreement executed on July 29, 2013 relating to the 2012 grievance. In that interim agreement, the employer had undertaken to assist the grievor acquire a suitable position by providing access to restricted OPS competitions, training, job shadowing opportunities etc. As a term of this interim agreement, in para. 7 the parties agreed that the instant grievance shall be consolidated with the 2012 grievance. At this mediation there was no discussion or attempt to resolve the merits of either grievance. The mediation did not result in settlement of the union’s allegation of non-compliance with the interim agreement. At the end of the day, the Vice-Chair, in consultation with the parties, set five days for arbitration of both grievances. On February 27, 2014 the Registrar issued a notice of proceeding for those five days, 16, 22 and 25 of September and October 06 and 30 of 2014. As it turned out four of those days were adjourned. On the only day the hearing was convened, September 22^nd, the parties only discussed process issues. The hearing on the merits of the grievances did not commence. On September 30, 2014 a further notice of proceeding was issued, scheduling four days for arbitration of both grievances, commencing on April 13, 2015. The Board record establishes that these dates were fixed on agreement at the hearing on September 22, 2014.

3The grievance was filed on March 27, 2013. The stage two grievance meeting was held on May 6 and July 16, 2013. The employer issued its reply denying the grievance on August 9, 2013. The grievance was referred to arbitration on September 25, 2013. The union concedes that the time limit for referral in the collective agreement is mandatory and that the referral was not made within that time limit. Counsel explicitly stated that the union was not making any argument that the time limit should be extended. Its sole argument was to the effect that the employer had waived the right to rely on the time limit for referral. There is no dispute that time limits for referral in the collective agreement are procedural, and as such capable of being waived. (Re Moody, 2010-2436 (Abramsky). Therefore, the issue for determination is whether or not the employer could be said to have waived its right to rely on the time limits.

4Brown & 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.

[footnotes omitted]

5In Re Metrolinx – GO Transit, 2010-2210 (Dissanayake) the Board observed as follows at para 28:

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.

6Whether intention to waive may reasonably be inferred obviously would depend on the evidence in each case. In the present case no viva voce evidence was adduced. There was agreement on some of the relevant facts. In addition, reliance was placed on e-mails and correspondence documenting inter-action between the parties. That evidence filed discloses the following chronology. On February 19, 2014 Mr. George Parris, employer counsel wrote to then union counsel Ms. Megan Reid, requesting “full particulars with respect to the matters raised by the grievor in advance of the February 26 2014 hearing date. Once I have received particulars I will be able to consider any preliminary issues”. Ms. Reid replied to Mr. Parris on February 25, 2014, setting out a general outline of the grievance. In the letter Ms. Reid stated, inter alia, that the main concern of the grievance was the personal harassment of the grievor by his immediate supervisor and a senior manager, and set out a number of examples of the alleged harassment. As noted above, on February 26^th no hearing took place. Instead the parties attempted without success to resolve the union’s allegation that the employer had failed to comply with the July 2013 Interim Agreement. The union did not pursue that allegation any further.

7On July 29, 2014 Ms. Reid sent an e-mail to Mr. Parris reminding that at the mediation in February he had agreed to provide production and requesting for production within the next two weeks. Mr. Parris’s response on August 29, 2014 included the following:

I will review the request with my clients early next week and respond. Also, if you will recall, we are still awaiting the full particulars of the grievance since to date we have only received a case outline. Also from a review of the case outline, it would appear at the very least that there may be some timeliness issues to determine on a preliminary basis. There may be other preliminary objections as well once we receive the union’s particulars.

8On September 8, 2014, Ms. Reid wrote again to Mr. Parris, stating that production had still not been received. On September 9, 2014, Mr. Parris wrote to Ms. Reid:

I am still waiting to receive documents relevant to the grievances, and have followed up with my client as to the status. That said, I am also still awaiting the Union’s particulars, which were requested in February 2014. Could you please advise as to when I can expect to receive the Union’s particulars?

The same day Ms. Reid replied:

I am meeting with the grievor on Thursday and expect to be able to provide particulars then. Is that OK? I think it might be prudent to speak about our plan for day #1. We have a number of witnesses on both sides and it sounds like you wish to raise a preliminary objection.

9On September 12, 2014, Ms. Reid provided particulars of the two grievances. At the end of her letter, she stated as follows under the heading “Preliminary Issues”:

“You have indicated that you anticipate making an objection relating to timeliness. Please provide particulars in that regard as soon as possible. It is the union’s position that such an objection is without merit given the continuing nature of the issues alleged by the grievor. I would appreciate speaking with you about what you anticipate raising on the first day of the hearing so that we can adequately prepare.”

10On September 19, 2014, Ms. Reid wrote to Mr. Parris referring to the hearing scheduled for September 22, 2014:

You have not provided notice of any preliminary objections. We are proceeding on the basis that none are being raised by your client. We have not received the requested production from you, and OPSEU should not be prejudiced by your client’s failure to produce. We can speak about this on Monday. The plan for Monday is to do opening statements and commence the grievor’s evidence in chief. Unless I hear otherwise, I will assume that you agree with this plan.

11The same day, Mr. Parris replied, stating inter alia:

Regarding the timeliness objection, which was raised with the Union on May 6, 2013, it remains live and is related to the timing of both the filing of the March 27, 2013, grievance, as well as its referral to arbitration. I have no objection to doing opening statements on Monday, however, would expect that we deal with the timeliness objection thereafter. I would then expect we turn our efforts to dealing with the disclosure issues.

The next day, September 20^th, Ms. Reid wrote to Mr. Parris:

I requested particulars relating to any timeliness objection on September 12, 2014, and received no reply. We can discuss this further on Monday, but absent any particulars, I’m not sure how the Union can be expected to address the employer’s objection. I disagree that there has not been a failure to produce. We have been provided nothing. If this is not a failure to produce, I don’t know what is. I will see you on Monday.

12On September 24, 2014, Ms. Reid wrote to Mr. Parris about a consolidation issue that had been discussed at the hearing on September 22^nd, reiterating that the union does not agree to consolidate a subsequent grievance the grievor had filed in 2014. In his response, on September 26, 2014 Mr. Parris dealt with the consolidation issue, and then wrote:

Regarding the timeliness objection, it is the Employer’s position that the March 27, 2013 grievance ought to be dismissed. As you are aware, the grievance relates to the events from October 2, 2012 to the commencement of the Grievor’s parental leave (December of 2012). The Collective Agreement specifically requires that grievances be filed in accordance with the time limits set out thereunder. This grievance was filed several months after the events being grieved. Furthermore, it was referred in September of 2013, which again was several months following the requirements set out in the Collective Agreement. In fact, the deadline for referral was passed even before the grievance was actually filed. As well, the Collective Agreement provisions that provided the arbitrator with the discretion to amend the time limits under the Collective Agreement were only in effect for grievances filed from April 2013 onward. Therefore, in addition to not having been filed on time, the grievance was not referred on time and therefore ought to be dismissed.

UNION SUMISSIONS

13Having conceded that the referral to arbitration was untimely the onus is on the union to establish the only defence it raised, that the employer waived the right to rely on the time limit for referral to arbitration. The union submitted that the employer raised the timeliness objection to the referral of the grievance for the first time on September 19, 2014. Particulars relating to that objection were provided only on September 26, 2014, after union counsel on September 20^th demanded particulars again. Counsel pointed out that the grievance, along with the 2012 grievance, had been scheduled for arbitration over 5 days, starting on September 16, 2014. Union counsel pointed out that the fact that the referral to arbitration was untimely would and should have been known to the employer as soon as the referral was made. The employer knew when the stage 2 meeting was held and when it issued its reply. It knew that the referral was not made within that time limit.

14Counsel submitted that despite that knowledge, no objection was made. Instead, in February 2014 the employer sought particulars of the grievance from the union; met for mediation before the Board on February 26^th, 2014, and proceeded to schedule five days to arbitrate both grievances. Then after the union had provided full particulars on September 12, 2014, on September 19^th just days before the first scheduled hearing date, the objection was raised for the first time. The objection was particularized on September 26^th, after the hearing convened on September 22^nd. Counsel submitted that the union’s particulars relating to the merits of the grievance were irrelevant for the issue of timeliness of the referral. The employer did not need those particulars in order to ascertain that the referral was untimely. As soon as the deadline of August 30, 2013 was missed, it would have known that it was too late. Yet, the employer proceeded to engage the union in preparation for arbitration, seeking particulars and providing production. The objection was first raised approximately one year after the untimely referral.

15Counsel submitted that by its failure to raise the objection until the eve of arbitration, the employer led the union to believe that it was not relying on the untimely referral. Counsel submitted that any previous references to timeliness were general and not specific. At the stage 2 meeting on May 6, 2013, the employer did raise timeliness. However, the objection was only about the late filing, and not about the referral to arbitration.

16Counsel argued that as a result, the union did not have the opportunity to consider the merits of the objection to the late referral, and assess its position. The employer ultimately did not pursue the issue it had raised about the untimely filing of the grievance. Therefore, any references the employer had made previously to the untimely filing are irrelevant in determining whether it waived the right to object on the basis of the untimely referral. In the interim period of approximately one year the employer took steps to have the grievance arbitrated by continuing to deal with particulars and production issues relating to the merits, and by scheduling five days for arbitration in consultation with the Vice-Chair and union counsel at the hearing convened on February 26, 2014. It did so, without reserving the right to raise a timeliness objection to the referral of the instant grievance. Union counsel submitted that by its actions, it caused the union to waste time, effort and resources preparing for arbitration of the merits of the grievance. Counsel argued that the employer thereby waived the right to rely on the union’s breach of the time limits for referral to arbitration.

EMPLOYER SUBMISSSIONS

17Counsel for the employer reviewed the references to “preliminary issues” and “timeliness” in e-mails sent from him to union counsel, Ms. Reid. He argued that the employer had not at any time advised the union that there were no preliminary issues to be dealt with. He submitted that particulars and production are a necessary part of litigation and arbitration. He disagreed that pursuit of particulars and production was a waste, because they are required to ascertain whether preliminary issues such as, absence of a prima facie case and estoppel arise.

18Referring to the union’s submission that the employer knew that the referral was untimely from the date of referral, counsel submitted that the union also would have known that. Therefore, it would not have been surprised when the objection was raised. The union’s awareness that a timeliness issue was alive is demonstrated by union counsel’s statement in the union’s particulars document dated September 12, 2014, to the effect, “You have indicated that you anticipate making an objection relating to timeliness. Please provide particulars in that regard as soon as possible.” Counsel argued that particulars of the objection were not required nor helpful for the union to be able to know that the referral was untimely. Since the employer had raised timeliness and knowing that its referral was untimely, at the latest by February 26, 2014, the union would have known that the objection to the referral was part of the timeliness issue raised by the employer. The employer did nothing to indicate that it was abandoning the timeliness issue it raised.

19Counsel agreed that at the mediation on February 26, 2014, five dates were agreed to by the union and employer for arbitration. Counsel argued that the dates were set, as is commonly done, to deal with the merits as well as any outstanding preliminary issues. The employer’s participation in scheduling dates for arbitration in the circumstances does not amount to waiver, because the employer had given notice previously that there was an outstanding timeliness issue. While the employer did take steps to have the merits dealt with by scheduling arbitration dates, the union would not have been taken by surprise that the employer had a timeliness issue.

20The Board asked employer counsel when, in his view, the employer first put the union on notice that it would be raising a timeliness objection to the referral of the instant grievance to arbitration. Counsel replied that it was at the mediation at the Board on February 26, 2014.

ANALYSIS AND CONCLUSION

21The Board is required, based on the information before it, to initially determine when the employer first raised the timeliness objection with respect to the referral. Then, it must decide whether the employer took a “fresh step” as understood in arbitral jurisprudence as would constitute a waiver. In this regard a number of decisions were drawn to my attention, including Re Vitorino et al, 2009-1293; 2009-1750 (Abramsky); Re Sagiuliano, 2011-2303; 2011-2304 (Briggs); and Re Moody (supra).

22The Board finds that the communications by employer counsel on February 19, 2014 referring to “preliminary issues”(supra para. 6) and his assertion on August 29, 2014 that “there may be some timeliness issues to determine on a preliminary basis” (supra, para.7) do not amount to an objection putting the union on notice that the employer would be raising an objection to the timeliness of the referral to arbitration. Employer counsel did not argue to the contrary. On the other hand, union counsel’s e-mail dated September 19, 2014 stating her expectation that at the September 22, 2014, opening statements would be done and that the grievor`s testimony would begin indicates her belief that the merits would be dealt with. It was only in response to this e-mail the same day that the employer for the first time specified that it was relying on the breach of time limits for referral.

23In his e-mail on September 19, 2014 (see, supra para. 11) employer counsel writes that at the stage 2 meeting on May 6, 2013 the employer raised a timeliness objection which remains alive and that it “is related to the timing of both the filing of the March 27, 2013 grievance, as well as its referral to arbitration.” The Board finds that if the counsel was asserting that at the stage 2 meeting an objection to the timeliness of the referral to arbitration was raised, that would be incorrect. The evidence is clear that at that time the only issue raised was about the late filing of the grievance. Employer counsel seems to accept that because his position in answer to a direct question from the Board was to the effect that the objection to the late referral was first raised later at the mediation on February 26, 2014.

24No direct evidence was led as to what occurred during the mediation on February 26, 2014. However, a document described as “Agreed outline of events” provided to me at the hearing included the following paragraph, which employer counsel stated was based on his recollection of what happened at the mediation:

At the February 26 mediation, the parties did not discuss the merits of either the August 2012 grievance or the March 2013 grievance. However, there was a quick review of the grievances near the end of the day where the grievance forms that were to be placed before the Board were reviewed. Counsel for the employer indicated that there were timeliness issues regarding the March 2013 grievance. Counsel for the Union responded that there would not be any timeliness issues given their position that it was a continuing grievance. At the time both counsel had significant difficulty in reading the grievance form including what date was actually on the face of the form. On the back side of the grievance form was the letter of referral.

25I conclude that at the mediation on February 26, 2014, the employer would not have raised an objection to the untimely referral. It is to be noted that as early as the May 06, 2013, stage 2 meeting the employer had raised an objection. It was only about the late filing of the grievance. Employer counsel does not specifically recall that an objection to the referral was raised. He only notes that the employer indicated generally that there were timeliness issues. Given that at this time only an objection to the late filing had been raised, if a new objection was raised at the mediation relating to the referral, employer counsel would very likely have recalled that specifically. His lack of such specific recall strongly suggests that no additional objection was raised relating to late referral.

26This conclusion is further supported by employer counsel’s recollection about the union’s response to the effect that the timeliness argument had no merit because the grievance was a continuing one. “Continuing grievance” may be a valid response to an objection based on an untimely filing of a grievance. It would have no merit or relevance as a defence to an objection based on an untimely referral to arbitration. Indeed the evidence supports a finding that as late as September 12, 2014, when the union provided detailed particulars of the grievance, it understood that the only timeliness objection the employer was raising had to do with the late filing. This is indicated by union counsel’s assertion again that the timeliness objection “is without merit given the continuing nature of the issues alleged by the grievor”.

27The Board concludes based on the foregoing that the employer first raised an objection to the late referral of the grievance in counsel’s e-mail dated September 19, 2014 (supra para 11). The following day union counsel requested particulars of the objection, which were provided on September 26, 2014. It is clear that the referral to arbitration was on September 25, 2013. The objection therefore was first raised approximately one year after the referral. The Board finds that the employer did not need particulars of the grievance or any other information to figure out the deadline for referral under the collective agreement. It knew or ought to have reasonably known as soon as the deadline passed, that any subsequent referral to arbitration would be out of time. Since the referral to arbitration was copied to the employer, upon receipt of the copy the employer would have known that it was outside the time limit.

28The next issue is whether or not the employer had taken a “fresh step” prior to making the objection to the untimely referral on September 19, 2014. The union’s argument was that the waiver occurred when the employer engaged the union in discussions as to how to proceed with the arbitration of the grievance, sought particulars of the allegations claimed in the grievance, and most significantly, by fixing dates to arbitrate the merits of the grievance. The evidence is that at the end of the day on February 26, 2014, following unsuccessful mediation of the alleged breach of the interim agreement, at the joint request of the parties the Vice-Chair fixed five days for arbitration of the instant grievance as well as the grievor’s 2012 grievance. However, a hearing was convened only on one of those five days, September 22, 2014. On that day the hearing into the merits did not commence. Instead the day was spent discussing process issues relating to the arbitration. It was agreed between the parties that four days would be required to complete the hearing. On that day, at the request of the parties, and in consultation with them, the Vice-Chair fixed four further days for arbitration, commencing on April 13, 2014.

29As Vice-Chair Briggs observed at para. 61 in Re Sagiuliano (supra) “Virtually all of the cases provided refer to objections being raised at the first opportunity or in a timely fashion”. In the present case, it did not happen. On or about September 25, 2013, the employer had all the necessary information clearly establishing that the referral was made in breach of the mandatory time limit. The objection was not raised until September 19, 2014. In the interim the employer took steps to prepare, and caused the union to prepare, for arbitration of the merits of the grievance by seeking particulars and providing disclosure relating to the merits, and scheduled dates for arbitration.

30In Re Moody (supra) the Board held that a request for particulars, in and of itself, does not constitute a fresh step. (See, Re Sagiuliano, at para. 22). However, here there was more than a mere request for particulars. The employer continued to engage in discussions with the union on how to proceed with arbitration, and fixed dates for arbitration.

31The Board has considered the scheduling of dates for arbitration as a relevant consideration in determining whether waiver had occurred. In Re Wage, 2033-3075 (Herlich) the Board dealt with a motion by the employer that the grievance was inarbitrable because it was filed outside the time limits. At para. 42 the Board observed:

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 …… 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 objections.

In dismissing the motion, at para. 49, Vice-Chair Herlich commented:

In the interim it had foregone any opportunity to raise the issue either during the grievance procedure or during the Joint File Review or by way of any other less formal communication between the parties.

32It is apparent that one of the factors the Board took into account in Re Wage in finding waiver was the scheduling of dates at the Joint File Review without raising the timeliness objection. In Re Moody (supra) Board was faced with a motion relating to untimely referral to arbitration. In its initial decision dated May 23, 2012, the Board followed Re Wage and concluded that the employer had waived the right to object to the untimely referral. One of the factors the Board considered in coming to that conclusion was the employer’s participation in the Joint File Review process without raising the objection. What followed is set out by the Board in its subsequent decision dated July 26, 2012, at para 2-3:

2Shortly after the Decision was issued, the parties requested that I reconsider and revise the Decision “so as to ensure that it reflects the Union’s and the Employer’s mutual agreement regarding the significance of the Joint File Review process.” Although the Union cited Re OPSEU (Union Grievance) and Ministry of Community Safety and Correctional Services, GSB No. 2003-3075 (Herlich, 2005) it was not relying on it for its conclusion that agreeing to a hearing at Joint File Review (JFR) constitutes a “fresh step” in proceedings between the parties. Instead, it was only relying on it “insofar as it contemplates evidence of waiver apart from the fact of a JFR meeting.” (Emphasis in original). The parties agreed that the Union did not, at the hearing, specifically argue that JFR constitutes a “fresh step”. In their written submissions on June 26, 2012, the parties advised as follows:

The Parties agree that the Joint File Review (“JFR”) process is an administrative procedure the purpose of which is to schedule dates for those grievances the Union has referred to hearing. JFR is simply a scheduling process and the Parties do not attribute to it any significance beyond this. In short, the Parties agree JFR does not constitute a “fresh step” in proceedings between the Parties.

3In light of this agreement – which was not made known to me at the hearing – and because the Union did not actually argue that JFR constitutes a “fresh step” – it just cited to Re OSPEU (Union Grievance), supra – I have agreed to revise my decision to reflect that agreement and the Union’s position. The parties further agreed that I should “consider the submissions previously put before me on April 24, 2012 to dispose in this issue”.

33Upon reconsideration, the Board reversed its initial decision and upheld the employer’s objection. The foregoing indicates that the Board considers the fixing of dates for arbitration to be a relevant factor in determining waiver issues. See also, Re Metrolinx – GO Transit, (supra) at para. 35. In Re Wage (supra) and the first decision in Re Moody the Board considered the scheduling of dates at the Joint File Review process to be a fresh step. In the second decision in Re Moody, the Board discounted that only because of the specific agreement reached between the parties that scheduling of arbitration dates at Joint File Review “does not constitute a “fresh step” in proceedings between the parties”. Notably, the parties limited that agreement to scheduling of dates at Joint File Review, and did not refer to scheduling of dates generally. In the present case, the dates were scheduled not at Joint File Review, but directly between the parties at a hearing.

34Where the employer engages in discussion of the merits of the grievance without raising the timeliness objection, it would be easy to decide that it had waived the right to object. However, the fact that the merits were not actually dealt with at any of the proceedings before the Board is not a complete answer in the circumstances of the present case. In determining whether or not an employer had waived the right to rely on an objection to timeliness, it is not appropriate to look at specific actions or absence of action on the part of the employer in isolation. Instead all of the evidence must be considered in context as a whole. The Board must then determine whether, in light of all of the evidence, it could reasonably conclude that the union would have been, or ought to have been, put on notice that the employer would be raising the particular objection it now seeks to raise. If the answer is in the negative, there would be a waiver. Applying that test to the evidence before me, I conclude that the union would not have had notice that the employer would be objecting to the timeliness of the referral of the grievance to arbitration until September 19, 2014. However, it had by then waived the right to make that objection.

35It is also of significance that the employer had raised an objection to the timeliness of the filing of the grievance. The union was not prepared to give up in the face of that objection. It was prepared to oppose the objection by arguing that the allegations were of a continuing nature, and in the alternative, that the Board should extent time limits. Had the employer made the objection to the timeliness of the referral at the first opportunity or in a timely fashion, the union would have been in a position to make an assessment whether it had a basis to overcome the objection, knowing that any extension of the time limits was not possible. By engaging in preparation for arbitration of the merits, without raising an objection to the timing of the referral, the employer led the union to believe that the only objection it was faced with was the one it had raised earlier in relation to the filing of the grievance. As it turned out the employer subsequently decided not to pursue the objection it had raised about the late filing.

36The employer did raise the objection to the late referral on September 19, 2014. However, by its conduct prior to that, it had waived the right to make that objection. It is well settled that once the right to raise an objection to the timeliness of a grievance is waived, it cannot be revived by subsequent notice. Re Fung and Anand, 1989-1798 (Stewart).

37For the foregoing reasons, the Board concludes that the employer had waived its right to rely on the collective agreement time limit for referral to arbitration. Therefore, the grievance is arbitrable. The Board remains seized, and the hearing shall continue on the scheduled dates.