Ontario Public Service Employees Union (Hay) v. The Crown in Right of Ontario (Liquor Control Board of Ontario), 2019 CanLII 65191

GSB#2015-0439; 2015-2086

UNION# 2015-0499-0022; 2015-0499-0093

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hay)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Marilyn Nairn Arbitrator

FOR THE UNION

Darryl Korell Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Andrew Cogswell Liquor Control Board of Ontario Counsel

HEARING

March 28, 2019

Decision

1This decision deals with two preliminary objections raised by the Employer.

2The grievor, Chris Hay, holds a full-time permanent Clerk Grade 3 position (class 056) (referred to by the parties as an “Operations Clerk”) at the Ottawa logistics facility of the LCBO (the “Employer”). Two grievances were filed on his behalf, dated February 24, 2015 and August 3, 2015. The first grievance asks that Mr. Hay be allowed to start work at 7:30am, relying on Article 7.2(a)(iii) and the management rights clause of the collective agreement, as well as asserting a violation of the Ontario Human Rights Code (the “Code”). The second grievance also relies on Article 7.2(a)(iii) of the collective agreement and asks that the grievor be allowed to work a 7am-3pm shift.

3The grievor’s current shift is from 8am to 4pm. The grievances were filed seeking a change in work hours in large part to accommodate child care arrangements. However, following a day of mediation where the grievances were not resolved, a family status claim under the Code was abandoned and the Union advised that it wished to proceed to hearing to seek a declaration that the normal hours of work for Operations Clerks on the day shift were determined pursuant to Article 7.2(a)(iii) of the collective agreement, providing a range of hours between 7:30am and 9:30am to between 3:30pm and 5:30pm and that staggered start times within that range could be applied to the hours of work of Operations Clerks across the province, including the grievor.

4It was the position of the Employer that the grievor’s hours of work were properly determined under Article 7.2(a)(ii) of the collective agreement, which established an 8am-4pm day shift, and that sub-paragraph (iii), relied on by the Union, applied only with respect to Operations Clerks at the Employer’s Head Office and associated warehouse in Toronto.

5The Employer raised two preliminary objections to the matter proceeding. First, the Employer asserted that the grievances failed to establish a prima facie case for the remedy requested. Second, it asserted that the grievances were moot. It asserted that each objection stood alone and upholding either objection warranted the dismissal of the grievances at this stage.

The Parties’ Positions

No prima facie case

6The Employer argued that the Union asserts a disagreement between the parties as to which hours of work provision in the collective agreement applies to Operations Clerks. That disagreement, argued the Employer, only became apparent at the outset of the hearing when the Employer was asked by the arbitrator to table its position. The Employer argued that there is now no allegation that the grievor is being incorrectly scheduled or that the Employer is misusing its management rights through scheduling. The Employer argued that the grievor’s schedule at all relevant times fit within the hours set out in either provision of the collective agreement. The grievance and arbitration process is not designed to litigate potential disagreements as to the application of the terms of the collective agreement, particularly where there is no impact and no available remedy, argued the Employer. Assuming the facts as true, argued the Employer, there is no prima facie case because the particularized allegations do not result in a violation of the collective agreement. An attempt by the Union to save the Employer from itself by asserting that it has more flexibility in scheduling than it believes, does not constitute a violation of the collective agreement, argued the Employer.

7The Union argued that, generally, the provisions of the Crown Employees Collective Bargaining Act and the Labour Relations Act, 1995 as amended, contemplate the ability and opportunity to have grievances heard. The live issue here, argued the Union, is the question of which provision of the collective agreement applied to someone like the grievor. The Union asserted from the outset that Article 7.2(a)(iii) applied to the scheduling of the grievor and that the Employer had violated that provision by failing to allow him to start his day shift earlier than 8am. Notwithstanding earlier requests by the Union, the Employer has only recently confirmed its differing position as to the applicable provision, argued the Union. That problem as to the interpretation, application and/or violation of the collective agreement remains, argued the Union.

8The Union relied on the decision in Blouin Drywall, infra, to argue that a broad approach and liberal construction be brought to bear in the exercise of the power to resolve existing disputes and issue appropriate remedies, including declaratory relief. This issue of the proper application of the collective agreement will not go away, argued the Union, asserting that it affected the bargaining relationship as well as individual employees.

Mootness

9With reference to the Supreme Court of Canada decision in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, cited in OPSEU (Coelho) v Ontario (Children and Youth Services), infra, and in considering whether there was any practical or useful purpose in proceeding, the Employer argued that the Union was seeking only a declaration as to which provision of the collective agreement operated with respect to the scheduling of these Operations Clerks. There would be no impact on any employee moving forward, the Employer argued, rendering any controversy academic. The Union was not seeking an adjustment to the grievor’s schedule and no damages or compensation were being claimed, argued the Employer. Nor was the matter likely to recur, argued the Employer. In evaluating whether a matter is moot, argued the Employer, one does not try to head off unknown, unparticularized, potential violations of the collective agreement. There is only a theoretical disagreement as to which provision of the collective agreement applied, the Employer argued. There was no real issue and no remedy remaining unaddressed, argued the Employer. The matter was therefore moot, it argued.

10The Union relied on the decision in Hilltop Manor, infra, to argue that in the context of an ongoing relationship, a declaration is a tangible remedy. It asserted that in Trillium Lakes, infra, the arbitrator was reluctant to dismiss an issue as moot in the context of the ongoing bargaining relationship, again confirming the importance of declaratory relief. Similarly, in the decision in St. Boniface Hospital, infra, argued the Union, wide scope was given to the grievance where there was found to be a live issue.

11The grievance, argued the Union, challenged the ability to schedule outside the 8am-4pm time frame. That issue could arise again and the systemic issue is highlighted by the Employer’s position that sub-paragraph (ii) applies, rather than sub-paragraph (iii), argued the Union. Even if the matter is determined to be moot, argued the Union, it was an appropriate case to exercise the discretion to hear the issue on its merits given a reasonable interest in certainty for the benefit of the parties’ future relationship.

12In reply, the Employer argued that if one were to construe the arbitration provisions as broadly as suggested by the Union, nothing would be moot. A casual conversation between a supervisor and employee at lunch could reflect a ‘difference” and become the subject of a grievance, argued the Employer. The “difference” required some form of impact or potential impact, not evident here, to warrant pursuing, argued the Employer. The Union has failed to identify a breach, argued the Employer, and the directive in Blouin Drywall to render a decision is one to be made “in light of the breach”, argued the Employer. There is no need to restore the grievor to the position he would have been in, as he is properly scheduled even under the terms of Article 7.2(a)(iii), argued the Employer. While the Employer agreed that declaratory relief could provide tangible benefit in circumstances where an employer is being directed to comply and thereby change its behaviour, such was not the case here, argued the Employer.

Decision

13The Employer referred me to and I have reviewed the decisions in: OPSEU (Couture et al) v Ontario (Government Services), 2011 CanLII 100922 (On GSB); OPSEU (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB); Greater Sudbury (City) and CUPE, Local 4705 (Haldin), 2014 CarswellOnt 2550 (Davie); OPSEU (Coelho) v Ontario (Children and Youth Services), 2014 CanLII 30245 (ON GSB); Police Assn. of Nova Scotia v Amherst (Town) (Hicks Grievance), [2011] N.S.L.A.A. No. 3 (Richardson); and Cherubini Metal Works Ltd. v. United Steelworkers of America, Local 4122 (Harassment Grievance), [2008] N.S.L.A.A. No. 6 (Christie).

14The Union referred me to and I have reviewed the decisions in: Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, (1975) 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103 (C.A.); Hilltop Manor Cambridge and SEIU, Local 1 (Rai Coordinator), 2018 CarswellOnt 13157 (Luborsky); ETFO and Trillium Lakelands District School Board, 2017 CarswellOnt 20066 (Wacyk); and St. Boniface General Hospital v. P.A.R.I.M., 1996 CarswellMan 642 (Freedman).

No prima facie case

15In assessing whether or not a claim makes out a prima facie case for the remedy requested, one assumes the facts as asserted as true and provable, and assesses whether those facts could support a finding of the alleged violation of the collective agreement. See OPSEU (Couture et al), supra, at paragraphs 6, 12, and 24; also cited in OPSEU (Martin et al), supra, at paragraph 3 and see paragraph 6.

16In this case, the Union has particularized the following assertions of facts. The grievor is a warehouse clerk employed in the Ottawa warehouse. He works a day shift and is scheduled to work from 8am to 4pm. The grievances both sought a remedy whereby the grievor would start work at an earlier time, relying on Article 7.2(a)(iii) of the collective agreement. However, the Union now seeks simply a declaration that the grievor and Operations Clerks like him, are subject to Article 7.2(a)(iii) of the collective agreement and not Article 7.2(a)(ii) as the Employer claims. The claim for family status accommodation was expressly abandoned and the Union is no longer seeking the remedy of an earlier start time for the grievor. While the first grievance also relied on the management rights clause of the collective agreement, alleging an abuse of management rights, no facts were pleaded or particularized in support of that allegation. No other asserted facts have been particularized.

17Rather than setting out the two lengthy sub-paragraphs of Article 7.2 of the collective agreement, it is sufficient to note that Article 7.2(a)(iii) sets out a day shift that is to operate between a range of hours, starting between 7:30am and 9:30 am and ending 8 hours later, respectively. Article 7.2(a)(ii) of the collective agreement establishes a fixed day shift from 8am to 4pm.

18It is the case that, in order for Operations Clerks such as the grievor to have any claim to a range of start times (including the earlier start time initially sought by these grievances), they must be subject to Article 7.2(a)(iii) of the collective agreement. If these employees are in fact captured under Article 7.2(a)(ii) of the collective agreement, it articulates a day shift operating from 8am to 4pm only. The parties disagree as to which sub-paragraph applies to the grievor.

19However, regardless of which sub-paragraph applies, the facts as alleged, and assumed to be true, do not support a finding of a violation of the collective agreement.

20The grievor’s schedule of 8am to 4pm complies with Article 7.2(a)(iii) of the collective agreement, as it falls within the range of hours set out therein. As described in OPSEU (Martin et al) at paragraph 6, the Union’s legal theory that Article 7.2(a)(iii) applies, does not, based on the facts alleged, support a conclusion that there is a violation of that provision of the collective agreement.

21The grievor’s schedule is also consistent with the hours of work set out in Article 7.2(a)(ii) of the collective agreement. As was found in OPSEU (Couture et al), supra, at paragraph 24, even if all the facts asserted by the Union are accepted as true, the grievance would not succeed. Regardless of which sub-paragraph applies to the facts alleged, no violation of the collective agreement would be established.

22Having regard to the above, I must find that there is no prima facie case for the remedy requested. These grievances must therefore be dismissed.

Mootness

23I will, in any event, consider the second preliminary objection. The parties agreed that the Supreme Court of Canada’s decision in Borowski v. Canada (Attorney General), cited in OPSEU (Coelho), supra (see paragraphs 29-30), and in Hilltop Manor, supra (see paragraphs 23-24), sets out the two-step test appropriately considered in assessing whether or not an issue is moot.

24Essentially, the first step is to ask whether the dispute has been rendered academic; whether a decision will have the effect of resolving a ‘live controversy’. If a decision will have no practical effect on the rights of the parties, it is appropriate to decline to decide the case. The decision in Hilltop Manor, supra, provides an excellent review of that assessment specifically in the labour relations context and in light of the ongoing relationship between the parties and I accept that analysis.

25The second step is to ask whether, even if the matter is moot, it is appropriate to exercise the discretion to consider the matter in any event. The court set out factors to consider in that regard and they are reviewed at paragraph 30 of the decision in OPSEU (Coelho), supra, and see paragraphs 37, 40, and 45 in Hilltop Manor, supra.

26The determination of mootness depends on the subject matter of the grievance. These grievances initially sought a change in hours of work relying on Article 7.2(a)(iii) of the collective agreement as applicable to the grievor. That remedy is now not being pursued. The only issue between the parties is which sub-paragraph of Article 7.2 of the collective agreement applies to Operations Clerks such as the grievor, an issue that one might arguably characterize as ‘systemic’. It is an issue underlying the grievances. As noted in Hilltop Manor, supra, at paragraph 45, a lack of remedy in and of itself does not render the issue moot, as a successful party is entitled to declaratory relief.

27However, in the particular circumstances here, the Union now seeks to establish that Article 7.2(a)(iii) of the collective agreement applies to Operations Clerks like the grievor in order to establish that the range of hours set out therein is available to be scheduled. Any such successful declaration is merely a precursor or stepping stone. The application of any range of hours of work is the real issue arising out of these grievances. However, the basis upon which that range of hours might be applied to Operations Clerks does not now form part of these grievances, either by way of allegation or in the remedy now sought. The assertion of an inappropriate exercise of management rights no longer forms part of the grievances as no facts have been alleged in that regard. In other words, the real issue between the parties, the appropriate basis for assigning hours of work within a range of possible start times, is not addressed by these grievances. Absent that piece, any answer to the issue of which provision applies, while being a necessary first step, is insufficient to address the real issue. The question of which provision applies is, in the context of these grievances, now rendered academic. While the limited fact situation alleged in the grievances might well arise again, no guidance would be provided to the parties by knowing which of the two sub-paragraphs of Article 7.2 of the collective agreement applied to those particular facts. As noted above, absent more, the facts as asserted comply with both.

28In these circumstances, I am persuaded that the issue raised by these grievances has been rendered moot. Nor am I persuaded that there are collateral consequences to the outcome that would warrant the exercise of discretion to proceed in any event. Therefore I decline to entertain the grievances on the basis that they are moot.

29Even if I am wrong in that finding, as noted above, the grievances do not make out a prima facie case for the remedy requested and must be dismissed on that basis.

30Having regard to all of the above, these grievances are hereby dismissed.