GSB# 2017-2071

UNION# 2017-0455-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Curtis)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 23, June 3 and December 13, 2019

Decision

1The grievance before me filed on behalf of Ms. S. Curtis is dated September 18, 2017. Ms. Curtis had been employed as a Fixed Part-Time Court Clerk Registrar in the Courts at Belleville, Ontario.

2The statement of grievance reads as follows:

I grieve that the Employer violated Article 32.17 of the Collective Agreement along with any other Articles that may apply, as well as relevant statutes. The Employer’s lack of making reasonable provisions caused me to become ill during my employment.

I grieve that the Employer violated the Human Rights Code by failing to accommodate my disability on a permanent basis, and claiming that it would cause undue hardship.

3In the Settlement Desired section of the grievance, Ms. Curtis specifically requested an order directing the Employer to comply with the Collective Agreement and an order directing the Employer to comply with the Ontario Human Rights Code (“HRC”) by providing her with a permanent accommodation immediately.

4As is evident from the grievance as written, Ms. Curtis complains about two matters. The second matter is a failure by the Employer to accommodate her disability on a permanent basis. The first matter is a health and safety complaint. In this regard she references article 32.17 within the provision dealing with Seasonal Employees. Article 32.17 provides as follows:

HEALTH AND SAFETY

The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

5The Employer takes the position that the grievance is untimely as it relates to the allegation that the Employer failed to make reasonable provisions for Ms. Curtis’ health and safety. It requested that this aspect of the grievance be dismissed. The Employer did not make a similar objection to the allegation that the Employer had failed to accommodate her disability, given its view that this aspect of the grievance is of a continuing nature. The Union raised a number of matters in support of its request that I reject the Employer’s motion. It took the position that the Employer had waived its right to rely on the mandatory 30-day time limit to file a grievance in article 22.2 of the Collective Agreement. It also took the position that the grievance was not untimely because the health and safety complaint was also of a continuing nature and because the test for determining whether a grievance is timely is essentially a subjective one and Ms. Curtis filed her grievance when she felt she needed to, given her state of mind at the time. In a final alternative, assuming I find no waiver and that the grievance is untimely, the Union argued that I should exercise my discretion to extend the time for the filing of the grievance. This decision addresses only the issue of whether the grievance should be dismissed because it was not filed in a timely manner.

6The basic facts relevant to the timeless objection can be described as follows. Ms. Curtis commenced her employment with the Ministry in October of 2007. For about the first three years she worked primarily in Family Court. It appears that from 2010 she was primarily assigned to clerk in Criminal Court. Her last day of work at the Courts at Belleville was on July 22, 2016. After that day she was absent from work due to illness, an illness which she claims in her grievance was because of the Employer’s failure to make reasonable provisions for her health and safety. Ms. Curtis initially received short term sickness benefits and then received Long Term Income Protection Plan (“LTIP”) benefits commencing January 26, 2017. It was determined at some point that Ms. Curtis had post-traumatic stress disorder and that she should not return to work in a courtroom. Ms. Curtis made efforts to return to work in a non-courtroom setting. In 2019 Ms. Curtis was eventually placed in an OAD6 position with a different Ministry through a Health Reassignment.

7As noted previously, Ms. Curtis’ grievance is dated September 18, 2017. For purposes of this motion, the parties agreed that September 18, 2017 is the filing date for the grievance. The Employer’s position is that the time starts to run for the filing of a health and safety complaint by at least July 22, 2016, Ms. Curtis’ last day of work. It asserts that any allegations about health and safety contraventions must have occurred before she ceased working. In light of the 30-day mandatory time limit, the Employer claims that a timely grievance alleging health and safety violations should have been filed no later than August 22, 2016, and that a grievance filed about 13 months after that date is extremely late and should be dismissed insofar as the health and safety complaint is concerned.

8No second step meeting on the grievance took place. The grievance was referred to the GSB and the parties selected an arbitrator and a date for hearing through the Joint File Review (“JFR”) process. The initial Notice of Proceeding is dated January 2, 2018, and it references a mediation/arbitration date of July 23, 2018. The parties appeared at the GSB on July 23 with the understanding that it would essentially be a mediation day. As is common on a first day for a case, I met with counsel to discuss what the case was about and how they wanted to proceed. Counsel for the Union spent some time highlighting the series of events that gave rise to Ms. Curtis’ grievance. Included in his summary were events which occurred prior to the time Ms. Curtis ceased working on July 22, 2016. After a brief attempt at mediation, it was clear that the parties were not in a position to resolve the grievance on that day. Counsel ended the day by discussing disclosure issues. I subsequently offered the parties continuation dates. A subsequent Notice of Proceeding was issued dated August 9, 2018, confirming the dates May 8, 9, 22, 23, June 13 and 14, 2019. The parties later agreed to adjourn the dates of May 8 and 9, 2019.

9Ms. Curtis filed an application under Section 34 of the HRC on August 27, 2018, in which she claims discrimination in employment on the ground of disability. In section 8 of her application, Ms. Curtis set out the details of every incident of discrimination that she intended to rely on at a hearing. The first 48 paragraphs in section 8 of her application referred to events that occurred prior to July 22, 2016. The Employer was advised of her application to the Human Rights Tribunal of Ontario (“HRTO”) in mid-October 2018. The HRTO deferred Ms. Curtis’ Section 34 application pending the completion of the GSB proceeding.

10By letter dated May 8, 2019, Union counsel provided Employer counsel with “a chronology of the facts as prepared by the Grievor which we rely upon as the particulars of the case.” The chronology of the facts essentially consisted of the detailed incidents set out by Ms. Curtis in her application under Section 34 of the HRC. I find it unnecessary to review the events the Union intends to rely on in its particulars that occurred before July 22, 2016. Suffice it to say that the particulars refer to a number of incidents between 2010 and July 22, 2016, which the Union intends to rely on to establish a breach of the health and safety provision in the Collective Agreement. On May 17, 2019, shortly before the hearing date of May 22, 2019, the Employer advised the Union through counsel that the Employer would be making a timeliness objection relating to the health and safety issue in the September 18, 2017 grievance.

11Counsel made detailed submissions on the issues related to the timeliness of Ms. Curtis’ grievance. Those issues were highlighted previously in paragraph 5 of this decision. In support of the Employer’s position on the motion, Employer counsel relied on the following decisions: OPSEU (Finn) and Ministry of Agriculture, Food and Rural Affairs (2019), GSB Nos. 2017-0553 et al. (Dissanayake); OPSEU (Liantzakis) and Ministry of Community Safety and Correctional Services (2014), GSB Nos. 2012-3997 et al. (Tims); OPSEU (Liantzakis) and Ministry of Community Safety and Correctional Services (2011), GSB No. 2008-3252 (Petryshen); OPSEU (Smith et al.) and Ministry of Community and Social Services (2008), GSB Nos. 2006-2107 et al. (Gray); and, OLBEU (Gamble) and Liquor Control Board of Ontario (1998), GSB #1635/96 (Gray).

12In support of its position that I should dismiss the Employer’s motion, Union counsel referred me to the following decisions: The George Brown College and OPSEU (De Simone), decision dated December 29, 1995 (Burkett); Centennial College of Applied Arts and Technology and OPSEU (Glenville), decision dated October 17, 1997 (Schiff); OPSEU (Sagiuliano) and Ministry of Community Safety and Correctional Services (2014), GSB Nos. 2011-2303 et al. (Briggs); OPSEU (Fung/Anand) and Ministry of Revenue (1991), GSB Nos. 1798/89 and 104/90 (Stewart); OPSEU (Taylor-Baptist) and Ministry of Correctional Services (1988), GSB No. 0163/87 (Kennedy); Re Laird and Ontario (Ministry of Community Safety and Correctional Services) 2005 CarswellOnt 11105 (O’Neil); Re Becker Milk Co. v. Teamsters, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett); Re Greater Niagara General Hospital v. O.N.A. (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff); and, Re Goodyear Canada Inc. v. USWA, Local 189, [2001] O.L.L.A. No. 792 (Goodfellow).

13Although the Union argued to the contrary, I am satisfied in this instance that the time for the filing of a health and safety complaint began no later than July 22, 2016, and that the grievance filed by Ms. Curtis was over a year late. Even if the events relied on to support the health and safety complaint were of a continuing nature up to July 22, 2016, any continuing element of these events ceased once Ms. Curtis left the workplace due to illness. I disagree with the Union’s submission that the test for the timely filing of a grievance is a subjective test. Article 22.2 of the Collective Agreement provides that an employee may file a grievance “within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee …” The material before me indicates that the circumstances giving rise to Ms. Curtis’ health and safety complaints came to her attention or ought reasonably to have come to her attention by no later than July 22, 2016.

14There is no dispute that the untimely filing of a grievance is a procedural defect that can be waived. The Union’s position on the waiver issue was quite straightforward. Union counsel argued that it would have been obvious to the Employer that the health and safety complaint in Ms. Curtis’ grievance was filed very late because it would have been based on events that occurred before she went off work on July 22, 2016, over a year before she filed her grievance. Counsel acknowledged the agreement of the parties not to consider the JFR process as the taking of a next step. Counsel submitted however that the Employer took fresh steps by participating in the mediation and discussing disclosure issues on July 23, 2018, and by participating in the scheduling of additional hearing dates. Counsel argued that the long delay in making the timeliness objection and the taking of fresh steps demonstrates that the Employer had waived it right to object to the late filing of Ms. Curtis’ grievance.

15The Employer’s defense to the waiver claim is also quite straightforward. Counsel argued that Ms. Curtis’s grievance did not contain any details of her health and safety complaint and that there was nothing for the Employer to waive until it became aware of the essential facts relied on by the Union to support the health and safety complaint. Counsel noted that the Employer was not aware of the full scope of the health and safety allegations and could not have known that the Union would rely on events that went as far back as 2010. Counsel submitted that the Union’s particulars were not provided until May 8, 2019, long after the mediation and the scheduling of additional hearing dates. He submitted that the Employer promptly made its objection once it became aware of the full scope of the health and safety complaint. Counsel submitted the circumstances of this case did not support a finding of waiver against the Employer.

16After considering the submissions of counsel on the waiver issue, I am satisfied that the facts of this case warrant the conclusion that the Employer had waived its right to object to the late filing of the September 18, 2017 grievance.

17The doctrine of waiver is described in Brown and Beatty, Canadian Labour Arbitration as follows:

In its applications, waiver is a doctrine that parallels the one utilized by the civil courts known as “taking a fresh step”; and hold that by failing to make a timely objection and by “treating a grievance on its own merits in the presence of a clear procedural defect, the party waives the defect.” That is, by not objecting to a 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 non-compliance, and any objection to arbitrability will not be sustained. This has been held to be so even though there was a timely objection to arbitrability but not one that related to the failure to meet time limits. Where, however, the objection to timeliness is made at the earliest opportunity, even if it is not made in writing, it will preclude a finding that the irregularity has been waived.

18The key elements of the doctrine of waiver include silence by a party when there is a clear procedural defect and subsequent conduct relating to the usual processing of the grievance. The cases suggest that procedural objections should be made “at the first opportunity’ or “in a timely fashion” and that a failure to so object amounts to a condoning of the procedural defect.

19In my view, the Employer would have been aware upon receipt of Ms. Curtis’s grievance that there was a procedural defect. As Employer counsel emphasized in his submissions on the late filing of the grievance, the health and safety complaint could have related only to events that took place when Ms. Curtis was at work prior to July 22, 2016. The filing of the grievance on September 18, 2017, far exceeded the mandatory 30-day time limit for the filing of the health and safety complaint. There is no doubt that procedural defect relating to the untimely filing of the September 18, 2017 grievance was clear on its face. It is true that the Employer did not become aware of the full scope of the events that the Union would rely upon to substantiate the health and safety complaint until it received the Union’s particulars. However, the doctrine of waiver is not applicable only from the time when a party is advised of the essential facts that support the complaint. The time starts to run from the time a party became aware of a clear procedural defect. In this instance the procedural defect in Ms. Curtis’ grievance would have been clear to the Employer upon receipt of the grievance. The Employer did not suggest otherwise in its submissions. Not being aware of the full scope of what the Union intends to rely upon is quite different from not being aware of a clear procedural defect relating to the untimely filing of a grievance.

20In the face of a clear procedural defect, the Employer did not object to the timeliness of the grievance when it was referred to the GSB. It made no such objection during the 10 months that elapsed from the filing of grievance until the mediation took place. At the mediation the Employer was advised through Union counsel about some of the events that formed the basis of Ms. Curtis’ health and safety claim. Disclosure issues were discussed at the mediation and subsequent hearing dates were set after consultation with the parties. In other words, the Employer participated in the usual matters involved in the processing of a grievance. During the 8 months between the mediation and when the Union provided it particulars, the Employer did not object to the timeless of Ms. Curtis’ grievance. The many months that passed from the filing of the grievance until the Employer made its timeliness objection in May of 2019 is clearly inconsistent with the requirement to make such objections at the first opportunity. The Employer’s participation in the mediation and in the process of scheduling additional hearing dates constitute fresh steps that support a finding that the Employer waived the procedural defect in this instance.

21For the above reasons, I find that the Employer had waived its right to object to the late filing of Ms. Curtis’ grievance. Given this finding, it is unnecessary to decide whether I should exercise my discretion to extend the time for the filing of the September 18, 2017 grievance. Accordingly, the Employer’s motion is dismissed.