GSB#2015-2948, 2015-2949, 2016-0010

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 (Chiba/Argyropoulos)

Association

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Gail Misra

Vice-Chair

FOR THE ASSOCIATION

Kelly Doctor Goldblatt Partners LLP Counsel

Marisa Pollock Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Susan Munn Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 15, 2016

Decision

1The Ministry of the Attorney General (the “Employer”) made a motion pursuant to Rule 3 of the Grievance Settlement Board (“GSB”) Rules of Procedure to have three disputes heard together. The two complainants in the disputes worked as Hearings Officers in the Toronto Court Services Division of the Ministry of the Attorney General.

2On May 25, 2015 AMAPCEO (or the “Association”) filed a formal dispute on behalf of its member, Charlotte Chiba, claiming that the Employer did not have just cause to give Chiba a letter of reprimand following receipt of a complaint by a client about comments Chiba had made in an endorsement she had issued. On February 5, 2016 this dispute was referred to the GSB for arbitration.

3On September 10, 2015 the Association filed another formal dispute on Charlotte Chiba’s behalf, claiming that the Employer did not have just cause to give Chiba a three day suspension for having allegedly harassed Argyropoulos and for having caused a poisoned work environment. This dispute was also referred to the GSB for arbitration on February 5, 2016.

4The parties agreed to the appointment of Vice Chair Bram Herlich to hear the two Chiba disputes, and on August 22, 2016 he issued a short decision regarding production issues in one of the disputes. Following that interim decision, near the end of August 2016, the parties engaged in a day of mediation with Vice Chair Herlich. The disputes were not resolved and will be proceeding to be litigated on dates that have been set in March and April 2017.

5On September 11, 2015 the Association filed a formal dispute on behalf of its member, George Argyropoulos, claiming violations of various articles of the collective agreement, various workplace policies, and the Workplace Discrimination and Harassment Prevention (“WDHP”) Policy. In essence, the claim is that the Ministry of the Attorney General failed to protect Argyropoulos from harassment by his coworker, Charlotte Chiba, and failed to provide him with a safe and harassment-free workplace. There are many allegations, but for the purposes of this motion, these are the most relevant. On April 6, 2016 this dispute was referred to the GSB for arbitration. The parties agreed that I would hear the Argyropoulos dispute, and the first day of hearing was held before me on September 13, 2016. I am seized of the Argyropoulos dispute.

6The Employer seeks to have the Argyropoulos and Chiba disputes heard together pursuant to Rule 3 because a number of Argyropoulos’ allegations are about Chiba’s behaviour towards him, and, as already noted, the Employer has disciplined Chiba with a three day suspension as a result of its investigation into his allegations. A review of the Argyropoulos allegations suggests that he is relying on incidents that occurred on April 1, May 8, May 20, June 19, and June 29, 2015, which he characterizes as harassment by Chiba. He also has numerous allegations regarding the Employer’s failure to properly handle his complaints about Chiba.

7According to the Employer, the incidents of May 20, June 19 and June 29, 2015 had not been part of Argyropoulos’ original WDHP complaint and investigation, and therefore had not been part of what the Employer had relied upon in its decision to discipline Chiba. The Employer also relies on a reference in the Argyropoulos documents that suggests that a comment Chiba is alleged to have made in October 2014 may also be in issue.

8There have been various exchanges between counsel on the Chiba matters, and while it appears that Chiba concedes some aspects of the allegations, she disputes the rest. As such, some evidence would have to be tendered by Argyropoulos in Chiba’s three day suspension dispute arbitration. Chiba may also testify in her own defence in respect of the Argyropoulos allegations.

9Argyropoulos has nothing to do with Chiba’s dispute as it relates to the letter of reprimand that she received.

10In Argyropoulos’ dispute arbitration the Association will bear the onus of establishing that he experienced workplace harassment by Chiba, and perhaps one other person, and that the Employer did not do enough to protect him or to maintain a harassment-free workplace. In this regard, the Employer asserts that it may have to call Chiba as a witness to establish what happened.

11It is on the basis that there would be some common evidence that would have to be called in both the Argyropoulos and Chiba disputes that the Employer seeks to have the matters heard together. It argues that there are facts in common, and the relief requested in both cases arises out of the same sets of circumstances. According to the Employer, in making this motion, it is simply asking me to make an evidentiary ruling. It wishes to avoid conflicting findings of fact should the two cases proceed separately. It argues that hearing the disputes together would eliminate the risk of inconsistent findings of fact, would save time, and would enhance the integrity of the GSB’s proceedings.

12The Employer asserts that it is important from a labour relations perspective that the Board speak as one, and that the possibility of having conflicting findings of fact by two Vice Chairs of the Board would decrease the integrity of the Board’s processes.

13The Employer put the Board and the Association on notice that even if the two matters were to be heard together, there may be further procedural issues to be addressed as there is another outstanding AMAPCEO dispute filed on Chiba’s behalf that will likely be referred to the Board, and which the Employer will likely argue should also be heard with the two Chiba matters that are already in question in this motion. Some aspect of the new matter also involves Argyropoulos, so the Employer contends that his evidence may be necessary.

14The Employer relied on the following decisions in making its arguments: Ontario Public Service Employees Union (Upson) and Ministry of Community Safety and Correctional Services, 2013 CanLII 56967 (ON GSB)(Harris); Ontario Public Service Employees Union (McClelland/Ward) and Ministry of Community Safety and Correctional Services, 2013 CanLII 73996 (ON GSB)(Briggs); Ontario Public Service Employees Union (Moore et al) and Ministry of Community Safety and Correctional Services, 2014 CanLII 48017 (ON GSB)(Nairn); Ontario Public Service Employees Union (Ewing) and Ministry of Community Safety and Correctional Services, unreported decision in GSB #2009-2078, November 28, 2011(Briggs); Association of Management, Administrative and Professional Crown Employees of Ontario (Bhattacharya) and Treasury Board Secretariat, unreported decision in GSB #2014-1191, December 1, 2015 (Anderson).

15Rule 3 of the GSB’s Rules of Procedure states as follows:

3. Consolidation of Cases

Where two or more proceedings are pending before the GSB and it appears to the GSB that,

a. they have a question of law or fact in common;

b. the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

c. for any other reason an order ought to be made under this rule,

d. the GSB, on such terms as it considers advisable, may abridge the time for placing a grievance on the hearing list, and may order that:

e. the proceedings be consolidated, or heard at the same time or one immediately after the other; and/or

f. any of the proceedings be stayed until after the determination of any other of them.

16The Association, on behalf of Chiba, noted that it had agreed to be bound by my decision in this motion, but without prejudice to its position that Vice Chair Herlich is seized of the Chiba matters.

17It is the Association’s position that Rule 3 does not apply in this instance; that in any event, I do not have the jurisdiction to direct that these cases be heard together; and, even if I do have the jurisdiction to do so, I should exercise my discretion not to direct that they be heard together.

18According to the Association, Article 15 of the collective agreement, which addresses the Dispute Resolution Procedure, is a very robust provision in which the parties have worked out how disputes will be handled. In particular, AMAPCEO relies on Article 15.9, the Joint Review Process (“JRP”), for the proposition that the parties have a process by which they meet regularly in order to streamline dispute resolution, including “to review all cases referred to arbitration in order to determine whether they can be resolved, expedited or consolidated” (Art. 15.9.1).

19In these two cases, according to the Association, the parties did not discuss having the Argyropoulos and Chiba matters heard together, even though they would each have been aware that there were common elements in some aspects of the two complainant’s disputes. The Association argues that was the time for the parties to decide that these matters should be adjudicated together, that the time has now passed to do so, and the Employer has waived any right to have the matters heard together.

20If that opportunity was missed because the Chiba and Argyropoulos matters had not come to the JRP at the same time, then the Association argues that the Employer should have raised its concerns when the scheduling of the hearings was being done in the Joint File Review process with the GSB. Even if the Argyropoulos file came later, that would have been the time for the Employer to have asserted that it should be joined to the Chiba matters for hearing. In any event, the Association points out that Vice Chair Herlich was chosen by the parties to hear the Chiba matters, and their choice should be honoured as he is now seized of those matters, and further hearing dates have been scheduled before him in March and April 2017.

21The Association relies on the language of Rule 3 to argue that it applies where two or more proceedings before the Board have not already commenced, but are “pending”. It further relies on the provision in the Rule that the GSB may abridge the time for placing a grievance on the hearing list, which AMAPCEO argues contemplates a grievance that has not already been placed on the hearing list and assigned to a different adjudicator. In this instance, the Chiba grievances have already been assigned to Vice Chair Herlich, and the Argyropoulos grievance has been assigned to me. As such, neither of these disputes is “pending”, nor are they matters that have not already been placed on the hearing list.

22Arguing for Argyropoulos, Ms. Pollock stated that the Association had not thought that the Employer was contesting this complainant’s allegations of harassment, but rather the issue was whether the Employer had acted in an appropriate manner in light of the poisoned work environment to which Chiba is alleged to have contributed. As such, the Association had not understood that it would have to call evidence to prove Argyropoulos’ allegations of harassment. That being its understanding, there would be no need to make findings of fact regarding Chiba’s actions, and would limit the possibility of inconsistent findings of fact should these matters be heard by different adjudicators.

23Even if the Employer is requiring the calling of evidence, according to AMAPCEO, it has identified only two matters that may actually be in contention: A comment Chiba is alleged to have made in October 2014, and an incident that is alleged to have occurred on April 2, 2015, but which Chiba contends did not happen (banging on Argyropoulos’ office door).

24In the course of the argument it became clear that Argyropoulos is not relying on an incident of alleged harassment by Chiba in October 2014. Chiba’s counsel had indicated that Chiba did not recall the incident, so it had appeared that this may have been one of the areas of disputed evidence. However, since AMAPCEO will not be relying on this incident in the Argyropoulos case, it seems this is no longer an area of concern in the calling of evidence. As such, the Association maintains that the overlap in facts that may be contentious is insignificant, and hearing these matters together is therefore not necessary.

25Counsel for Argyropoulos argued that the Association would be calling medical evidence to support Argyropoulos’ claim that he was forced to quit his employment because of the effect the allegedly toxic workplace was having on his health. This evidence would be extremely confidential and sensitive, and should not have to be called in front of Chiba or her representatives when it has nothing to do with her issues with this Employer.

26Counsel for Chiba argued that the first of her disputes regarding a letter of reprimand has nothing to do with Argyropoulos. Chiba’s suspension was premised on the alleged harassment of Argyropoulos, but it will be AMAPCEO’s contention in that instance that the Employer cannot call any evidence. The Association maintains that management only relied upon a framework that had been provided by the WDHP investigator: the Employer had not itself done any investigation of its own, and as such should be precluded from calling any evidence to support its contention that it had just cause to discipline Chiba.

27Since it is the Association’s intention to make many objections to evidence that the Employer may seek to call in the Chiba case, it is AMAPCEO’s position that should these matters be heard together it would result in prejudice to Chiba, as I would be hearing Argyropoulos’ evidence of what Chiba may have said or done to him, but that should not be evidence that could be relied upon for Chiba’s discipline.

28The Association argues that my jurisdiction to hear the Argyropoulos case arises out of the collective agreement, and while the GSB may have rules, those rules cannot be inconsistent with the Ontario Labour Relations Act, 1995 (“OLRA”) or the Crown Employees Collective Bargaining Act (“CECBA”). Thus, it is argued, I cannot take jurisdiction from another arbitrator who has already been appointed and who is seized of a different matter, except with the agreement of the parties, which, in this case AMAPCEO is not giving.

29AMAPCEO does not dispute that section 48(12) of the OLRA applies, because CECBA outlines that it is sections 48(1) to (6) which do not form part of CECBA. It relies on subsection 50(1)(b) of CECBA for the proposition that the parties agree on the selection of the Vice Chair who will determine certain matters, and on subsection 50(1.1) for the proposition that the employer and trade union “may make an agreement as to the sequence in which the Grievance Settlement Board shall consider outstanding matters in which the employer and trade union have an interest”, and the GSB must give effect to that agreement. Subsection 50(3) states that either party can give notice to the GSB that it no longer wants the agreement to apply, and in that case, the GSB must cease to give effect to such an agreement. In this case the parties have not agreed on any sequence in which the GSB may consider the Argyropoulos and Chiba matters, but the Association points out that CECBA anticipates that the parties can agree on their own process, and that any party can withdraw from that process.

30Subsection 48(12) of the OLRA grants an arbitrator a broad range of powers, including to make procedural rulings, and to accept oral or written evidence as, in the arbitrator’s discretion, she or he considers proper.

31The Union relied upon the following decisions in making its arguments: Southern Railway of British Columbia Ltd. v. C.U.PE. Local 7000, 2001 CarswellBC 3359 (Larson); Canadian Union of Public Employees, Local 416 (Toronto Civic Employees Union) v. Toronto (City) (Job Posting Grievance), [2002] O.L.A.A. No. 755 (T. Joliffe) (the “Joliffe decision”); Canadian Union of Public Employees, Local 4000 v. Ottawa Hospital (Scope Decision Grievance), [2004] O.L.A.A. No. 390 (Hornung) (the “Hornung decision”); Ontario Public Service Employees Union (Moody) and Ministry of Children and Youth Services, 2012 CanLII 35048 (ON GSB)(Abramsky).

DECISION

32Having considered the submissions of the parties, and reviewed the jurisprudence, for the reasons that follow I am of the view that I do not have the jurisdiction to order the consolidation of the Chiba and Argyropoulos disputes.

33I have been appointed to hear the Argyropoulos dispute, and had already commenced the hearing on September 13, 2016. At the parties’ request, Vice Chair Herlich has been appointed to hear the Chiba disputes; he has commenced his proceeding and has issued a preliminary decision; he has held a day of mediation at the request of the parties; and has further hearing dates already scheduled for March and April 2017.

34I agree with the Joliffe decision, cited above, in that I do not believe that my power to make interim orders on procedural matters pursuant to subsection 48(12)(i) of the OLRA can extend to incorporating into my proceeding matters that are already properly before another Vice Chair of the Board. The parties here agreed to refer these matters to different adjudicators, and since both adjudicators have already taken jurisdiction and participated in their respective processes, in the absence of agreement of the parties, it is simply too late in all the circumstances of these cases to consolidate these matters. I do not agree with counsel for the Employer’s characterization of this motion as simply seeking an evidentiary ruling: the Employer is making a far more radical request in seeking, over the objection of the Association, to have matters that are before different adjudicators heard by one of them, thereby ousting the jurisdiction of the other adjudicator.

35In the Hornung decision, cited above, the arbitrator had similarly held that where the parties had referred grievances to different arbitrators, absent the agreement of the parties, one arbitrator cannot assume the jurisdiction of another arbitrator or board of arbitration. Arbitrator Hornung further noted (at para. 35) that he could not cede his jurisdiction. Even if he had ceded his jurisdiction, he was not certain that the other board of arbitration would be in a position to take jurisdiction without the parties’ agreement. Arbitrator Hornung stated as follows:

38. I am satisfied that an arbitrator, properly appointed, hearing similar grievances, with similar issues, between the same parties, under the same collective agreement may in fact, pursuant to section 48(12)(i), make a consolidation order, even in the absence of consent by one of the parties. However, I am not convinced that I have jurisdiction, even interpreting section 48(12)(i) broadly, to either assume jurisdiction in order to incorporate into my proceedings another separately filed grievance – over which I have not gained jurisdiction by appointment or consent of the parties – from another arbitrator who has been duly appointed; or, alternatively, transfer my jurisdiction in the matter to another arbitrator without such consent.

36In the context of the GSB, in McClelland/Ward, cited above, Vice Chair Briggs addressed a Rule 3 motion made by the employer. In that case Ward’s grievance was to be heard by Vice Chair Abramsky, and McClelland’s by Vice Chair Briggs. McClelland’s counsel did not object to the consolidation of the grievances for hearing before Vice Chair Briggs, but Ward’s counsel did object. It appears from a reading of para. 19 of the decision that the Ward case had already commenced before Vice Chair Abramsky, but counsel for Ward did not make the jurisdiction argument that has been made before me. He did not argue that Vice Chair Briggs was without jurisdiction to remove a case that had already commenced before another adjudicator who was seized of that grievance.

37McClelland had a termination grievance (which related to an incident that had involved Ward) as well as other discipline and harassment and discrimination grievances that pre-dated her termination. In that instance Vice Chair Briggs ordered that the Ward and McClelland matters be heard together because there were common questions of fact, and perhaps law, in respect of the termination grievance, and because it seemed apparent that the relief claimed in that matter arose out of the same transactions or occurrences (at para. 20). She found that the cases were inextricably interwoven, and that it would be detrimental to the parties if there were differing findings of fact regarding the incident of alleged assault. McClelland’s grievances were to proceed first, and Ward’s grievance alleging workplace violence and the employer’s failure to protect her, was apparently to be addressed secondarily.

38The most significant difference between what appears to have been argued in McClelland/Ward and before me is that here AMAPCEO asserts that I do not have the jurisdiction to order that the Argyropoulos and Chiba disputes should be heard together. That was simply not argued before Vice Chair Briggs, nor does it appear to have been argued in any other of the GSB decisions the Employer has relied upon.

39As well, in McClelland/Ward one of the grievor’s counsel was not objecting to the matters being heard together. In the case before me, both of the Association’s counsel for the complainants are vehemently objecting to the matters being heard together.

40In Upson, cited above, Vice Chair Harris considered an employer request to consolidate the hearing of four grievances filed by one grievor, with one grievance filed by another grievor. The issue alleged to be common to the grievances was a November 2011 physical altercation between the two grievors. It is noteworthy that in that case the employer agreed that one of Upson’s four grievances had nothing to do with the altercation, and that it was to be scheduled separately in its own right. That is not the case before me: the Employer here wants all of Chiba’s disputes heard together with the Argyropoulos matter even though one has nothing whatsoever to do with him. In any event, in Upson, the Vice Chair held that two of Upson’s other grievances also had little to do with the altercation itself, and held that they should not be heard with the other grievor’s matter.

41Another distinguishing factor in Upson was that the parties in that case, OPSEU and the employer, agreed on the general considerations in the application of Rule 3, and counsel for the two grievors, while unable to agree on consolidation, were prepared to concede that the matters could be heard together. That is not the case before me: As outlined earlier, counsel for the two complainants clearly do not concede that these matters could be heard together. Ultimately, Vice Chair Harris directed that only the two grievances, those filed by each grievor regarding the same incident, would be heard together.

42What is significant is that there is nothing in the Upson decision to suggest that any proceedings had begun before any other Vice Chair by the point at which the motion to have the matters consolidated was made, so unlike the situation here, that was not a problem that Vice Chair Harris had to consider.

43In Moore et al, cited above, Moore had filed 11 grievances, and two other grievors had filed two grievances each. The latter two grievors’ matters had been referred to the GSB, but had not yet been scheduled by the time that the employer made a motion that all of the grievances be heard together. Vice Chair Nairn accepted that all of the discipline grievances of the three grievors arose out of the same incident and what had occurred in its aftermath (para. 19), and found that it would not make sense to hear the evidence three times in separate proceedings (para. 20). This decision is of little assistance to me in this motion as it is clear that in Moore et al the two sets of grievances that the employer was seeking to have heard together with the Moore grievances had not yet been scheduled. As such, no other adjudicator was seized of the other two sets of matters, and Vice Chair Nairn determined that the Rule 3 considerations had been met.

44In this instance, AMAPCEO has made the argument regarding jurisdiction. Once an argument about jurisdiction has been raised, it is incumbent on the adjudicator to address it, as it goes to the heart of whether one can hear a case or not. For the reasons already outlined, in the absence of agreement of the parties, in my view I cannot take jurisdiction over disputes that are already before another Vice Chair of the Board, and where that adjudicator is seized of the matters before him.

45Even if I am incorrect, and could be said to have jurisdiction to consolidate the Chiba and Argyropoulos disputes, for reasons that follow, I would not exercise my discretion to do so.

46In the exercise of an adjudicator’s discretion, Rule 3 contemplates consideration of whether there is a question of law or fact in common; whether the relief claimed in the proceedings arises out of the same transaction, or occurrence or series of transactions or occurrences; or, for any other reason that the Board considers should cause it to order that matters be consolidated, heard at the same time, one immediately after the other, or if any of the proceedings should be stayed pending the determination of any other of the proceedings.

47The Argyropoulos dispute appears to be a discrete matter, while the Chiba disputes are far broader ranging in scope, in that they already include a matter that has nothing to do with Argyropoulos. Furthermore, it appears the Employer may move to add a third dispute to the Chiba matters, and while there may allegedly be some aspect of that case that involves Argyropoulos, even the Employer is not asserting that his role in that Chiba case would be central to his issues before me.

48In light of the parties’ submissions, it appears to me that there is not likely to be much overlap in the evidence between the two proceedings. There may be one aspect of Argyropoulos’ dispute that would overlap with Chiba’s disputes, so there may be a limited question of fact that the disputes have in common.

49The relief that Argyropoulos is seeking in his dispute arises in part from the same occurrences that are at the heart of one of Chiba’s disputes, but as already noted, it appears that only one aspect of Argyropoulos’ allegations in his dispute is actually being challenged by Chiba. As such, there is some, but apparently very limited, overlap between the occurrences for which each complainant is seeking relief.

50Overlapping facts are not the only consideration when weighing whether cases should be heard together: there is also the question of the use of resources and whether one party may be prejudiced in a joint process. In this instance, given that there appears to be limited overlap in the facts in dispute, it would be unfair to Argyropoulos and the Association to require that complainant and his counsel to have to sit through days of hearing that have nothing whatsoever to do with his dispute.

51In addition to the unnecessary costs associated with having counsel for Argyropoulos present, there is a strong likelihood that there would be considerable delay in the resolution of the Argyropoulos dispute. This is because the Chiba reprimand dispute must precede her three day suspension dispute, as the latter disciplinary response is premised on her already having received a written reprimand. Thus, the Argyropoulos dispute, and any evidence relating to it, would likely be left in limbo until the Chiba three-day suspension dispute could be addressed.

52The issue that purportedly led to Argyropoulos quitting his employment was his inability to continue to work with Chiba, in an environment that his medical advisor apparently felt was bad for his health. If that position is maintained, and the Association intends to call medical evidence in this regard, then I agree with counsel for Argyropoulos that it would be an unnecessary breach of confidentiality to have Chiba and her counsel present for such evidence as Argyropoulos’ medical history has nothing to do with her disputes. In the normal course, this is something that could be addressed through procedural rulings in the course of a hearing so that a complainant’s medical privacy could be maintained. However, where there are so few good reasons to hear these matters together, this is simply another reason not to hear the Chiba and Argyropoulos matters together.

53For all of the above reasons, and even if I am incorrect about whether I have the jurisdiction to hear the Chiba matters with the Argyropoulos dispute that is already before me, in the exercise of my discretion I would decline to direct that these matters be heard together.

54While it is not necessary to address every one of the Association’s many arguments in light of my ruling, I do not want to leave unaddressed the argument made regarding the Employer’s alleged waiver of the consolidation issue during the Joint File Review process. The Association argued that because the Employer had not raised during the Joint File Review process, or earlier, that the Argyropoulos dispute should be heard with the Chiba disputes, that it should be found to have waived its right to do so.

55In Moore et al, cited above, Vice Chair Nairn addressed a union’s argument that in the Joint File Review process the employer had had the opportunity to raise with the union whether three grievors’ disciplinary grievances should be heard together because they arose out of the same circumstances. Having failed to do so, the union argued that the employer could not raise it later. At para. 21 of the decision, Vice Chair Nairn stated:

21. Joint File Review is an administrative process whereby representatives of the parties meet with the Board for purposes of scheduling hearings. It cannot be taken as producing an agreement between the parties with respect to matters of procedure that are unalterable by the Board in the course of a hearing, should circumstances warrant.

56I agree with Vice Chair Nairn’s comments in this regard, and cannot accept AMAPCEO’s argument that just because parties may not have turned their minds to procedural matters during the Joint File Review process, that that means a party cannot make a procedural motion before the Board in the course of a hearing. The GSB is the master of its own proceedings; the GSB Rules of Procedure envision that there may be matters that must be decided in the course of a proceeding; and, section 48(12) of the OLRA, to the extent that it is applicable to a matter before the GSB, also grants the Board broad powers in the conduct of a hearing. As such, in this instance I cannot find that the Employer should have been precluded from make this motion at this stage of the proceeding simply because it had not raised the matter during the Joint File Review process.

57In conclusion, for the reasons outlined above, the Employer’s motion is hereby denied. I remain seized of the Argyropoulos dispute, and refer the matter to the Registrar to set further hearing dates in consultation with the parties.