GSB# 2017-0787

UNION# 2017-0719-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Neniska)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

TELECONFERENCE

January 27, 2020

Decision

1In a decision dated November 8, 2019, I directed the Employer to pay Mr. Neniska the sum of $500.00 as damages for its breach of a Memorandum of Settlement dated September 8, 2017. I also directed that the $500.00 was to be paid within sixty days from the date of the decision. The Employer did not make the payment by the deadline of January 7, 2020. On January 10, 2020, Union counsel raised the issue of the late payment with Employer counsel. The Employer sent the payment to Mr. Neniska on January 16, 2020, and he received it on January 24, 2020. This decision addresses the Union’s request for a remedy for the Employer’s breach of the direction contained in the decision dated November 8, 2019.

2Immediately after receiving the decision awarding the payment of damages to Mr. Neniska, the ERA sent the decision to the Regional Office and to the Superintendent and the Deputy Superintendent at the relevant institution, instructing them to ensure payment was made to Mr. Neniska. It appears that the changing of the Superintendent and the extended absence of the Deputy Superintendent due to illness was in large part responsible for the Employer not making the payment in a timely manner.

3To remedy the breach of the direction to pay damages within sixty days of the November 8, 2019 decision, the Union seeks a declaration, interest on the late payment and a further award of $500.00 in damages. Although conceding a breach of the direction, the Employer took the position that an award of damages was not appropriate in the circumstances. During their submissions on the teleconference, Union counsel relied on OPSEU (Bateman et al.) and Ministry of Community Safety and Correctional Services (2016), GSB Nos. 2014-3683 et al. (Johnston) and Employer counsel relied on OPSEU (Salmon) and Liquor Control Board of Ontario (2019), GSB Nos. 2010-0054 et al. (Johnston).

4The issue in OPSEU (Bateman et al.) was whether the failure of the Ministry of Community Safety and Correctional Services (now called the Ministry of the Solicitor General) to pay damages to a grievor within sixty days as provided for in Minutes of Settlement (“MOS”) warranted a remedy that included an order directing the Employer to pay damages for the breach of the MOS. In declining to make such an order in the circumstances, the Arbitrator made the following comments at page 5:

…In my view, if you agree to a time frame for certain actions, you are bound by that time frame. Neither counsel was aware of a case in which the union had taken the position it was now taking before me. Although union counsel asserted that the employer has missed the deadline for payment in the past, the union has not ever sought damages or compensation for breach of contract. Therefore as this appears to be the first time that a remedy has been sought, it seems appropriate to me to put the employer on notice that the next time it fails to pay in accordance with the agreed MOS there could be consequences. Obviously, the consequences will be dependent on the facts.

5It is trite to say that parties are obliged to comply with the terms of a settlement and with the terms of an order from the Board. In this instance, the breach of the Board’s order was not due to bad faith or willful misconduct. Once the breach was brought to its attention, the Employer quickly arranged for payment to be made to Mr. Neniska. I was advised that the interest owing as a result of the late payment amounts to less than one dollar. However, this is not the first time that the Ministry has breached a payment deadline, as evidenced by OPSEU (Bateman et al.) And the damages award in the November 8, 2019 decision was a result of the Employer’s breach of an earlier Memorandum of Settlement. In my view, the frustration and additional time Mr. Neniska has had to devote to receiving his damages award warrants a remedy that includes a payment for damages. However, in light of all of the circumstances, the request for $500.00 in damages for breach of the Board’s direction is excessive.

6The breach of the Board’s order shall be addressed as follows:

1. I find and declare that the Employer has breached the Board’s direction set out in the decision dated November 8, 2019, by failing to pay $500.00 to Mr. Neniska within sixty days from the date of the decision.

2. I direct the Employer to pay to Mr. Neniska the sum of $100.00 by no later

than 40 days from the date of this decision. This amount includes any interest owing.