GSB#2016-1557

Union#G079-16 BFF

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Janczak)

Union

• and -

The Crown in Right of Ontario (Metrolinx - GO Transit)

Employer

BEFORE

Gail Misra

Vice-Chair

FOR THE UNION

Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARING

December 13, 2016

Decision

1The Amalgamated Transit Union (the “Union” or the “ATU”) has made an application for interim relief pursuant to Rule 10 of the Grievance Settlement Board (“GSB”) Rules of Procedure. It is seeking a ruling that Metrolinx (the “Employer”) be required to make its best efforts to accommodate Steven Janczak (the “Grievor” or “Janczak”) in a suitable position within 30 days, and that if the Employer does not do so, the Union should be entitled to bring the interim relief application back to the GSB. The Union filed declarations from Janczak and Christine Broeze, the Executive Vice President of the Union, in support of its application. The Employer filed a declaration from Cary DeVries, the Manager, Bus Fleet and Facilities West, in support of its response to the interim relief application. In accordance with the normal process in expedited proceedings of this nature, no evidence was called, and no findings of fact have been made in reaching a decision regarding the Union’s interim relief application.

2Metrolinx is a regional transportation agency operating a transit service network in and around the Greater Toronto Area. It apparently operates more than 500 buses, and the maintenance repair and other servicing of those buses is undertaken at three main service garages (in Oshawa, Steeprock and Streetsville), as well as by mobile coach technicians at six satellite locations.

3According to the Union, the Grievor was working as a coach technician at the Streetsville bus garage in March 2016. On Friday March 18, 2016 he apparently called in sick. On Saturday March 19, 2016 Janczak was in a motor vehicle accident and was criminally charged with impaired driving. As a result, his driver’s license was immediately suspended for 90 days.

4In the immediate aftermath of the charge being laid on March 19, 2016, it appears that the Union advised the Employer of the situation, and that the Grievor would be booking off work indefinitely in order to seek treatment. The Employer disputes that it was told about the Grievor’s intention to seek treatment at that time, but following a meeting with the Union and Grievor on April 7, 2016, it was aware that Janczak’s plan was to seek treatment and assistance relating to ongoing personal issues and his abuse of alcohol.

5On May 11, 2016 the Grievor apparently pled guilty to the impaired driving charge, and his driver’s license was suspended for 15 months, until August 2017. The Employer asserts that despite having been asked to keep Metrolinx informed of the status of Janczak’s license suspension, the Grievor neglected to do so in a forthright manner. Apparently the Employer ultimately had to independently obtain a copy of the Court order to learn the terms of the Grievor’s license suspension and the nature of the conduct that resulted in the impaired driving charge, the latter of which was allegedly quite different from what the Grievor had described to the Employer at the meeting on April 7, 2016.

6Apparently the Grievor began to investigate treatment options for alcoholism after the March accident and the impaired driving charges had been laid. He allegedly participated in and completed a three-week outpatient alcoholism rehabilitation program at the Trillium Health Partners Addictions and Concurrent Disorders Centre between late May and June 17, 2016.

7By a letter dated June 27, 2016 Trillium Health Partners Addictions and Concurrent Disorders Centre stated that the Grievor had completed its program, and was fit to return to full time work as of July 4, 2016.

8Janczak then apparently commenced a 16-week recovery program, which concluded on October 24, 2016. Since then he is purported to be engaging in further aftercare, including attending at an unspecified church group, and he is apparently following the treatment advice of his medical practitioners, although it is unclear what that entails.

9On July 19, 2016, Janczak purportedly completed Ontario’s “Back on Track” program related to drinking and driving. As a result his driver’s license was conditionally reinstated, permitting him to operate any motor vehicle that is equipped with an ignition interlock device. His personal vehicle has apparently been fitted with such a device. In August 2017 the Grievor should be able to regain an unrestricted driver’s license.

10According to the Union, the Grievor has been diagnosed as suffering from alcohol dependence, which is a disability recognized under the Human Rights Code.

11From the time he first went off work in March, the Grievor apparently received Metrolinx sick benefits until late May 2016. Thereafter he received Long Term Disability (“LTD”) benefits through the Employer’s insurer on the basis that he had an alcohol dependence.

12On August 11, 2016 the Grievor was advised that Metrolinx was placing him on an unpaid leave of absence until August 11, 2017, when his driver’s license would be fully reinstated. He was also given a five-day suspension related to the “driving while impaired” charge, which suspension was to be served concurrently with the period Janczak would be on the leave of absence.

13According to the Employer’s letter of August 12, 2016, confirming the unpaid leave of absence and the 5 day suspension, it put Janczak on a leave of absence because until August 11, 2017 the Grievor is unable to operate any vehicle that is not equipped with an alcohol ignition interlock device, and his job as a coach technician requires him to have a valid Ontario Class “G” driver’s license. As well, he is expected to meet the corporate standard for a good driving record. In the Employer’s view, Janczak can no longer perform the duties of his job, so he has been placed on an unpaid leave of absence until he can drive again. The leave of absence is apparently in accordance with Article 7.2 of the parties’ collective agreement.

14The five day suspension was apparently given for a number of reasons including because the Grievor already had a 20 day suspension on his file for an unsafe driving and disregard for safety incident in the workplace; because the Employer alleges that Janczak was misleading and evasive when responding to questions about the current license suspension; and because, given the nature of his job, the Grievor is responsible for ensuring that his on and off duty behaviour does not put his license in jeopardy.

15On August 22, 2016 the Union filed a grievance regarding Janczak’s placement on an unpaid leave of absence and the five-day suspension. The grievance claims that “the Employer has failed to provide me with reasonable alternative duties until my Driver’s License is reinstated. The suspension is, furthermore, without cause.” By way of remedy, the Union is seeking declarations of contravention of the collective agreement and the Human Rights Code; an order that the Grievor be reinstated effective immediately; that he be made whole including compensation for all losses including non-economic losses; and, damages for breaches of the Human Rights Code.

16The Employer denied the grievance, and asserted that it had acted reasonably in granting the leave of absence; it denied that there was reasonable accommodation available; and stated that there was nothing presented by the Union to justify reducing the five day suspension.

17On October 26, 2016 the grievance was referred to the Grievance Settlement Board.

18On November 16, 2016 the Union filed this application for interim relief. It claims that the leave of absence has had, and continues to have, a significant impact on the Grievor’s life and on that of his family because he has not had his Metrolinx employment income since July 2016 when his LTD benefits stopped because he was deemed fit to return to work. According to the Grievor’s declaration, he has found some alternate work, but given its seasonal nature, he will be without income for the winter, will therefore have difficulty making mortgage payments, and will likely lose his family home. I note that there is nothing before me to support the state of the Grievor’s financial difficulties, other than his own assertion in his declaration to that effect.

19As well, the Union claims that the Grievor has been isolated, that his self worth has been demonstrably decreased, and the leave of absence has had a negative impact on his overall mental health. Other than the Grievor’s statements to that effect in his declaration, there is no objective evidence before me to support any of these assertions.

20The Union asserts that financial stress has led to “significant family discord”, which increases the Grievor’s overall stress levels. Furthermore, the Grievor apparently lives in fear that the stress he is experiencing could contribute to a relapse. While there is no medical report or other objective evidence put before me regarding the Grievor himself, the Union relies upon a variety of sources to create a patchwork quilt in support of its assertions regarding the effects of stress on relapse and a link between alcoholism and the loss of a driver’s licence. The Union quotes a sentence in a British Columbia decision wherein a doctor testified about an individual that his work was very stressful, and that stress could trigger a relapse (Friebel v. Omelchennko, [2014] BCJ 1189, at para 86), and a line in another decision: “relapses which could occur as a result of stress, health or family problems” (Washington Mills Electro Minerals and U.S.W.A., Local 4151, [1994] O.L.A.A. No. 1254 at para 29). The Union also relied on two academic treatises: the first was a printout of what appears to be a Power Point presentation titled “The driver’s cognition, personality, behaviour, motivation and emotions” by Matus Sucha, from the Department of Psychology at Palacky University in the Czech Republic; the second is a paper titled “Recognizing, Managing and Containing the “Hard Core Drinking Driver”, by William L. White and David L. Gasperin, published in (2007) Alcoholism Treatment Quarterly, 25(3), pp. 113-132. Neither piece appears to rely on Canadian research, and without an expert declaration to assist in deciphering these treatises, I have not found them to be helpful in my consideration of this matter.

21The Union went to great lengths through the Janczak declaration to outline that while the Grievor’s job as a coach technician includes some driving, it is apparently not a common occurrence, and that he could be accommodated by having someone else drive a bus when necessary. As well, the Grievor is of the view that he could return to his old job and only rarely would he require additional assistance of a co-worker to move or test a bus.

22In addition, the Union asserts through the Broeze and Janczak declarations, that the Employer has accommodated many other coach technicians in non-driving positions over the years by having them do way finding; performing Ministry of Transportation inspections; working as a coach technician; or elsewhere. As such, it is asserted that the Grievor could be accommodated in a clerical position, doing diagnostic testing working with someone else; doing longer term bus repairs, or Ministry of Transportation inspections. Others have apparently been so accommodated.

23According to the Union, the Grievor suffers from a known and accepted disability, alcoholism, which it is asserted has a nexus to his driver’s license being suspended, and therefore the Employer has an obligation to accommodate him to the point of undue hardship. However, it is asserted that the Employer has failed to scan the workplace for potential accommodation, failed to consider the impact of the unpaid leave of absence on the Grievor, and has failed to engage in a meaningful discussion with the Grievor or the Union about his accommodation.

24The Employer disputes the Union’s assertions about the driving elements of the Grievor’s job. Cary DeVries, the Manager of Bus Fleet and Facilities West, stated in his declaration in support of the Employer’s response that coach technicians are required to operate a bus, or to otherwise drive for scheduled and unscheduled bus inspections, diagnostics, and repairs. These duties apparently include road tests prior to inspection to diagnose problems with the operation of the bus; road tests during or after inspection and repair to determine whether repairs or other operations have been successful; or to test brake issues. As well, coach technicians apparently do on-the-road service calls to a location where a bus has had mechanical problems, where the coach technician may perform the necessary work on the bus, or may exchange a fully operational bus for the one with mechanical problems, and then drive back to the garage. Coach technicians are allegedly responsible for the transportation of buses within the service garage and around the outside of the building in order to bring a bus to the right area of the garage for the type of repair or maintenance required, and they transport buses between the outside parking lot and the garage.

25According to DeVries, it is unusual for a bus to remain on a hoist for as long as three weeks, as was asserted by the Union: if the coach technicians are waiting for a part, a bus is put out of commission until the part arrives, and the coach technicians carry on working on other vehicles.

26DeVries stated in his declaration that it was operationally unfeasible to employ non-driving coach technicians at the bus garages. The three main garages are staffed on shifts by between one and 13 coach technicians on any particular shift, each of whom is expected to operate independently. Since hundreds of buses have to be serviced, or may encounter unexpected mechanical difficulties, it is difficult to know in advance what work will be undertaken on any particular shift, or even from one moment to the next on a shift. According to DeVries, the garages are very busy, and the coach technicians must be able to respond to any issues that arise, and perform any of the duties of the position. The Employer asserts that Metrolinx operational requirements are such that coach technicians at the main bus garages recorded 20,760 hours of overtime between January and October 2016 (a document was provided to this effect).

27DeVries declared that Metrolinx conducts approximately 3,000 bus inspections per year, and that due to the high volume, the coach technicians are each required to perform many inspections, often more than one per shift, and each such inspection requires bus operation.

28According to the Employer, it does not schedule surplus coach technicians, so it would not be feasible for the Grievor to interrupt another coach technician’s work each time a bus he was working on had to be driven. It would also not be feasible to have the Grievor refrain from doing any on-location repair work when a bus breaks down on the road if Janczak was otherwise available to do the work, because to do so would mean that productivity would be slowed down, and that would impact the service to Metrolinx clients.

29The Employer asserts that it only assigns apprentice coach technicians to work with a coach technician periodically where the pairing is deemed suitable; where the designation of a coach technician as a mentor to an apprentice is based on the mentor’s historical performance and caliber of work; and the Grievor has not been determined by Metrolinx to be a suitable candidate for this role.

30According to DeVries, a smaller number of service persons support coach technicians on each shift, but there are only two or three who work per shift, and each service person supports three coach technicians. It would not therefore be feasible for a service person to perform all driving duties for the Grievor, and in any event, bus operation is an integral part of vehicle inspection and diagnosis, which are coach technician responsibilities.

31The Employer relies on Article 7.4(2)(c) of the collective agreement for the proposition that these parties have agreed that Metrolinx has the sole and absolute discretion to decide whether allowing an employee who loses their license to perform non-driving duties will affect operations. As such, it asserts that having a coach technician not capable of performing the various driving components of the job would increase the burden on a system that already requires coach technicians to work significantly more hours than their regular work schedules. It has apparently not been feasible to have a non-driving coach technician since well before the Grievor’s leave of absence commenced.

32According to Metrolinx, while the collective agreement, at Article 7.4(2)(d), contemplates that the Employer may, in its sole and absolute discretion, agree to place an employee in another position if a vacancy exists after all standing applications have been fulfilled, no such vacancies have arisen since the Grievor’s leave of absence commenced, and the Union has not asserted that Janczak should be placed in any particular vacancy.

33According to DeVries, while Metrolinx periodically accommodates employees with disabilities in non-driving roles pursuant to Article 8.8 of the collective agreement, there are a limited number of such positions available, and there is a long list of employees with disabilities awaiting the availability of a non-driving job. The Employer indicates that the Union is well aware of this issue, and that there are some such employees who have been waiting for a significant period of time for accommodated positions. Those who the Union had identified as having been accommodated in non-driving jobs were unable to drive due to medical restrictions, and were accommodated as non-driving positions became vacant at the time. The one individual who has been accommodated in the Streetsville bus garage for a number of years was first accommodated many years ago, and at a time when his particular arrangement was operationally feasible. That individual’s accommodation apparently has a negative impact on the operation of the Streetsville bus garage, and would not have been agreed to today.

DECISION

34There is no dispute that the Grievance Settlement Board has the jurisdiction to grant interim relief pursuant to Part II of the Crown Employees Collective Bargaining Act, 1993 (“CECBA”) and the provisions of the Ontario Labour Relations Act, 1995 (“OLRA”), which are deemed to form part of the CECBA unless expressly modified. Subsection 48(12)(i) of the OLRA grants arbitrators the power “to make interim orders concerning procedural matters”.

35The GSB has interpreted the power to grant interim relief “concerning procedural matters” broadly, provided that the relief granted is not dispositive of the grievance in question, and the union is able to satisfy the test for interim relief (see OPSEU (Ranger) v. Ontario (MCSCS), [2004] OGSBA No. 151 (Leighton) at paras. 8-9 and OPSEU (Clarke) v. Ontario (MAG), [2005] OGSBA No. 19 (Abramsky) at para. 30).

36The Board’s interpretation of its power in this regard has been upheld by the Ontario Court of Justice (Divisional Court) on judicial review wherein the Court found that two interim orders granted by the GSB did not decide the main issue in the grievance, and that the GSB had not made any findings relevant to the determination of the main issue (Ontario (Ministry of Labour v. Ontario (Grievance Settlement Board), (1997) O.J. No. 427 (Ont. Crt. J. Div. Crt.) at paras. 1-2, affirming OPSEU (Nield) v. Ministry of Labour, GSB No. 1996-1471 (Roberts)).

37The Employer argues that the interim relief requested by the Union is substantive, and not procedural in nature in that it is effectively dispositive of one of the central issues in dispute in the grievance filed. As such, it argues that the remedy sought by the Union would be inappropriate as an interim determination.

38Contrary to the Union’s argument that the interim relief it is seeking in this case is a procedural matter, and that it is not dispositive of any part of the grievance, in my view that is what is being sought. One of the two main aspects of the Janczak grievance is that “the Employer has failed to provide [the Grievor] with reasonable alternative duties until [his] Driver’s License is reinstated”, and the relief sought in the grievance is an order that the Grievor be reinstated effective immediately. What the Union is seeking by way of interim relief is a ruling that Metrolinx be required to make its best efforts to accommodate Janczak in a suitable position within 30 days, and that if the Employer fails to do so, that the Union should be able to return to the GSB again about this issue.

39The “interim relief” being sought is essentially what the Union could hope to achieve if it were successful through grievance arbitration. It is a distinction without much difference to say, as the Union did in its argument, that it is only seeking to have the Employer make its best efforts to find the Grievor a non-driving job. When the Union is also asserting that part of the interim remedial order should be the right to return to the GSB should the Employer not successfully find the Grievor a non-driving job within 30 days, it is in my view looking for what the Union may get by way of remedy should it be successful in the grievance arbitration when the arbitrator remains seized regarding remedy. The Union is not simply requesting that the Employer look for a non-driving job for Janczak, it wants the GSB to ensure that Metrolinx finds one for the Grievor.

40It appears that the Union is trying to circumvent the grievance arbitration process and get the Grievor a remedy now, which he may or may not be entitled to at the end of his case. In the absence of having heard any evidence, made any findings of fact, or considered the terms of the collective agreement, the interim remedy the Union is seeking in this application cannot be granted without the matter being litigated because to grant it would be to have effectively disposed of the accommodation aspect of the grievance.

41I agree with Arbitrator Louisa Davie, who stated as follows in her decision in Niagara Catholic District School Board v. Canadian Union of Public Employees, Local 1317 (Educational Assistants Grievance), [2013] O.L.A.A. No. 510, at paras. 22 and 23:

22. However, I do not accept that section 48(12)(i) can be so broadly interpreted as to enable an arbitrator, on an interim basis, to grant the substantive relief which might result if the grievance is decided in favour of the party requesting the interim order.

23. I am unable to accept Union counsel’s skilled argument that this interim relief request does not decide the key issues surrounding the grievance and the propriety of the assignment. No matter how it is framed it is difficult to deny that granting the interim order requested will essentially decide the matter in favour of the Union. …

24. ... The Union is seeking an interim order requiring the Employer to do the very thing requested in the grievance. To do that would require the arbitrator to make determinations and various findings relevant to the issues in dispute although evidence on those issues has not been heard. On an interim basis the matter would be decided in the Union’ favour without having been litigated.

42The GSB made a similar comment when it considered an interim relief request in Canadian Union of Public Employees Local 1750 (Union) and The Crown in Right of Ontario (Workplace Safety and Insurance Board), 2013 OGSB minicounsel 29(F. Briggs). In denying the request, Vice Chair Briggs noted as follows:

56. In arriving at my decision to deny this application I am also mindful that the interim relief sought for each of the three grievances is virtually identical to the relief sought on the face of the grievances. In other words, what is being requested by way of interim relief is the same as will be requested from the Board seized with the ultimate disposition of the matters. Boards of Arbitration tend to be reluctant to order interim relief that has the appearance of being dispositive of the very matter at issue between the parties.

43In OPSEU (Bharti) and The Crown in Right of Ontario (Ministry of Natural Resources and Forestry), unreported decision, GSB#2013-2789, September 11, 2014 (I. Anderson), the GSB considered an interim relief application made by the union. In that instance the grievance alleged that the employer had violated the Human Rights Code by not accommodating the grievor’s religious observance requests, and the remedy sought was that the employee be accommodated for religious observances in accordance with his beliefs. The particulars provided regarding the grievance indicated that the main issue was that the grievor lived in Ottawa; had applied and successfully got a job located in Sault Ste. Marie or Peterborough; when the grievor told his employer he needed some time to sell his Ottawa house and relocate to Sault Ste. Marie, the employer permitted him to work out of Peterborough until the relocation; and then later the employer allowed him to work out of Peterborough permanently. However, the grievor continued to live in Ottawa, never relocated, and after one year he asked to work in Ottawa. Since the employer would not agree, the grievance had been filed some years later in 2013. The grievor claimed that his religious practices required him to be in Ottawa, and that the employer’s requirement that he work in Peterborough interfered with his religious obligations. By way of interim relief the union was seeking an order that the grievor be permitted to continue to work in Ottawa until the final disposition of the grievance.

44Vice Chair Anderson noted in Bharti that even if the grievor’s allegations amounted to a prima facie case of discrimination, as the union asserted, thereby shifting the burden to the employer to establish that he could not be accommodated, one would still have to consider any issues of accommodation before it could be said that the grievor had an arguable case that the collective agreement had been breached. He noted that the employer’s declaration addressed why accommodating the grievor would mean he was not doing the full job for which he was being paid, and that it would otherwise constitute undue hardship to the employer to have to accommodate the grievor in Ottawa. Vice Chair Anderson noted that the grievor’s declaration contained bald assertions, about which the adjudicator had concerns. (At para. 18)

45At para. 24 Vice Chair Anderson addressed his concern that the interim relief sought was identical to the relief sought in the underlying grievance. In essence Vice Chair Anderson was concerned that merely by making bald assertions in an interim relief application, a grievor could get the very remedy that he may ultimately be denied after a full hearing of his grievance. The interim relief application in Bharti was denied.

46In this case, I have the same concerns as did Vice Chair Anderson about the bald assertions made by the Grievor regarding the effect of the leave of absence on his health, his family, and his financial situation. Even assuming that the issue was only one of accommodation of a disability (which it is not, as the Employer has an argument it wishes to make regarding the language of the collective agreement as it relates to the loss of a license and whether the loss of the driver’s license is in fact part of the disability of alcoholism), as in Bharti, the Employer in this case has asserted why accommodating Janczak would cause it undue hardship. The Employer states that Janczak would not be doing the coach technician job for which he would be paid, and it would cause significant inconvenience in various ways to have to accommodate him as a non-driving coach technician; or, the Employer would be required to give the Grievor some other non-driving job when there are other employees who have been waiting for far longer for such jobs that meet their respective medical restrictions, all of which would constitute undue hardship to the Employer in respect of the Grievor’s accommodation.

47I also note that since what the Union is seeking in this interim relief application is at the heart of the accommodation aspect of the grievance, each party has expended considerable effort in explaining why the Grievor could, or could not be accommodated in a non-driving job. In light of the significant differences in what each party claims regarding the accommodation possibilities, it is difficult to see how, in the absence of hearing the evidence and making findings of fact, it would be possible to grant the remedy the Union is seeking.

48The situation before me is much more like that in Bharti than in the cases relied upon by the Union. In the interim relief application in Ranger, cited above, it appears that the grievor had gone off work sick, and the union was seeking to have him placed in a position other than his regular job on an interim basis while his harassment grievance was being addressed. In the alternative, the union wanted him put back on the payroll after his long term disability payments had been exhausted, and until the case ended or he could return to work. In that instance, the grievance claimed that the employer had condoned harassing behaviour against the grievor, which had caused him to suffer harassment and discrimination on the basis of sexual orientation. The adjudicator had before her medical evidence that established that the grievor had been able to return to work in September 2003, so long as he did not return to a correctional facility, and that it would be much better for the grievor’s health to be working.

49Vice Chair Leighton considered that Ranger’s grievance raised the issue of whether the employer had violated the grievor’s human rights, and whether the grievor’s workplace had been poisoned. The remedy sought was to work in a healthy, non-toxic environment. She found that an order to accommodate the grievor in an alternate workplace, while the hearing on the merits proceeded, would not be dispositive of the grievance (para. 9). It was only after having made that finding that Vice Chair Leighton then went on to consider whether the union could meet the test for interim relief.

50In Clarke, cited above, Vice Chair Abramsky addressed a union’s interim relief application. In that case the grievance claimed that the employer’s decision not to renew the grievor’s contract or assignment in Milton was contrary to the collective agreement terms, and a breach of the OLRA, because the employer was punishing her for pursuing a separate group grievance and complaints about a no-typing policy that had been instituted. The interim relief application sought an order that the employer be required to rescind the termination of the grievor’s contract or assignment pending the hearing of her grievance.

51It would appear that the employer in that case did not make the argument that the remedy sought in the grievance was essentially the same remedy that the union was seeking by way of interim relief. As such, Vice Chair Abramsky did not address that issue. Instead, she considered whether the test for interim relief had been met, and ultimately denied the application on the basis that the balance of harm to the employer outweighed that to the grievor.

52In the case before me, a major part of the grievance underlying this application concerns the allegation that Metrolinx failed to assign the Grievor to a non-driving position for the period of his licence suspension, and that amounts to a breach of the duty to accommodate the Grievor’s alcoholism. Metrolinx’ position is that the duty to accommodate was not engaged in this instance: Janczak lost his driver’s licence and that caused the Employer to place the Grievor on a leave of absence in accordance with the terms of the collective agreement as they apply to a license suspension. However, the Union is seeking an interim remedy that would effectively require Metrolinx to assign the Grievor to a non-driving position pending the outcome of the grievance arbitration, which, in addition to other remedies, is exactly what the Union is seeking in the main grievance.

53As such, I am of the view that granting this interim relief application would result in my effectively deciding the accommodation issue in dispute in the grievance, and that is not the type of determination that has been endorsed by the Court. Furthermore, it is not what is contemplated as being the appropriate purpose of an interim relief application. Considering the GSB’s jurisprudence in this regard, the interim relief requested in this instance would essentially be dispositive of one aspect of the grievance, which would be well beyond what could be considered as the power of an arbitrator to make an interim order regarding procedural matters under subsection 48(12)(i) of the OLRA.

54Having determined this question, it is unnecessary to go on to consider the test in interim relief applications. The interim relief application is hereby denied. I am not seized of this matter.