GSB# 2017-2936; 2017-2937; 2018-2950
UNION# 2017-0205-0034; 2017-0205-0035; 2018-0205-0044
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Bremner)
Union
- and -
The Crown in Right of Ontario (Ministry of the Attorney General)
Employer
BEFORE
Gail Misra
Arbitrator
FOR THE UNION
Lauren Tarasuk Koskie Minsky LLP Counsel
FOR THE EMPLOYER
Daria Vodova Treasury Board Secretariat Legal Services Branch Counsel
HEARING
January 9, 2020
Decision
1Three grievances filed on behalf of Kathie Bremner have been referred to the Board for arbitration. A grievance dated June 1, 2017 alleges that the Employer failed to support the grievor’s return to work despite her ongoing efforts to make such arrangements beginning on October 31, 2016. The second grievance, dated June 26, 2017, claims that the Employer violated Article 44 of the collective agreement as the grievor alleges that she had worked for the requisite 20 days to qualify for access to the Short Term Sickness Plan (“STSP”) and other entitlements in February and March 2014, but that she had not been given access to the STSP and other entitlements since 2014. The third grievance, dated November 27, 2018, alleges that the Employer has unjustly and without just cause terminated the grievor’s employment.
2This decision addresses the Employer’s preliminary motion that the June 26, 2017 grievance (# 2017-0205-0035) regarding STSP and other related entitlements from 2014 is untimely.
3For the purposes of the motion, the parties had agreed that they would not call witnesses to give evidence. The Union sought to provide some background to the grievances through a letter of extensive particulars that it had provided to the Employer on the afternoon before the hearing. The Employer objected to the January 8, 2020 letter of particulars being entered as an exhibit as it had been provided so late, leaving no time for counsel to review it with the relevant members of management referred to therein. The Employer reserved the right to challenge the particulars, as well as new allegations that had been made in the letter of particulars.
4I ruled that I would accept and read the letter of particulars simply for the purpose of providing context to the Union’s submissions. However, the letter was not admitted into evidence, and the particulars themselves, to the extent that they appear to be factual in nature, will not be considered as true and provable. For the record I note the Employer’s position that when this matter proceeds further, it holds the Union to the strict proof of the assertions made through the particulars provided.
5By way of general background, about which there is no dispute, the grievor was employed by the Ministry of the Attorney General in the Court Services Division as a Court Reporter 1. She began her employment in approximately November 2000 and worked at the John Sopinka Court House in Hamilton. The grievor was off work on medical leaves for long periods of time commencing around 2009.
6During the material period for the purposes of the Employer’s motion, it asserts that in 2014 the grievor worked a total of approximately 41 days: some of those days were worked in February and March, and as well the grievor worked sporadically for a few days in April, May, June and November 2014. She went off work for medical reasons in November 2014. In 2015 and 2016 she did not work at all. In 2017 she worked one day in the year. Her employment was terminated in November 2018.
7The “Statement of Grievance”, as articulated in the June 26, 2017 grievance, is as follows:
I grieve that the employer has violated Article 44 (Short Term Sickness Plan) of the Collective Bargaining Agreement as well as any other Article, Policy and Procedure, or Legislation that may apply in the circumstances. I have already worked the required consecutive 20 days to qualify for sick days, STSC and LTC in February/March 2014, but yet I have not been given five sick days at full pay nor have I been paid any STSC, my extended health coverage has been terminated and there have been no contributions to my pension for the period of time I have been off work on sick leave, November 2014 to present.
8By way of remedy, the grievor seeks among other things “to be paid for missed sick days, STC, and LTC days from missed qualification period in 2014 plus interest”.
9As already noted, the Employer argues that this grievance is extremely untimely as it was filed more than three years after the matter complained about had occurred. It maintains that the grievance was filed in breach of Article 22 of the collective agreement, and there is no reason for the arbitrator, pursuant to section 48(16) of the Ontario Labour Relations Act, 1995 (“OLRA”) to exercise discretion to extend the timeline for the filing of the grievance. The Employer argues it is extremely prejudiced by the inordinate delay in filing the grievance. It therefore seeks to have the grievance dismissed without hearing, and requests that any particulars that the Union has filed in support of this grievance be struck.
10The relevant portions of Article 22, regarding the Grievance Procedure, are as follows:
22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.
22.2 If the complaint or difference is not resolved at the local level an employee may file a grievance, in writing, through the Union, with their manager within thirty (30) days after the circumstances giving rise to the complaint had occurred or have come or ought reasonably to have come to the attention of the employee, who will in turn forward the grievance to the designated management representative.
22.14.1. Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.
22.14.6. The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreements.
22.14.7. Notwithstanding Article 22.14.6, the GSB has the jurisdiction to apply section 48(16) of the Ontario Labour Relations Act to extend the timelines specified in the collective agreement at all stages of the grievance and arbitration processes.
11The Employer notes that in the Union’s January 8th letter of particulars, it relies on three grounds for the late filing of the grievance: 1) That the grievor was not aware of any timelines for when a grievance had to be filed as she had not filed a grievance before; 2) That in 2014 the grievor was off on a medical leave and was ill, which impacted her ability to file a grievance; and 3) The grievor alleges that she faced ongoing harassment by a manager, which caused reluctance to file a grievance for fear of retribution (at paras. 10 to 12 of the letter of particulars).
12According to the Employer, these are excuses that are only now, on the eve of the hearing, being posited, and have never been claimed before. It notes that the grievor was on and off work in 2014, and she would have been aware that she was not receiving the entitlements that she finally grieved in 2017. The Employer relies on the fact that the grievor was aware as of at least January 15, 2015 that she had not received the STSP and other entitlements to which she believed she was entitled by virtue of having purportedly worked 20 consecutive days in 2014. It points to an email the grievor sent to Diane Young, the Supervisor of Court Operations at the John Sopinka Courthouse, on January 15, 2015, the relevant portion of which states as follows:
I have worked the required 20 days to qualify for short term and long term sick credits, which would cover my extended health care premiums so that I could attend for physio, but for some reason I am not being given any credits or health care benefits. I am being asked to repay money that was not paid to me and I’m also being asked to pay for health benefits that I never requested and never used as I did not know I had them. As I am not receiving any sick credits or health benefits, I cannot afford to pay for physiotherapy.
13The Employer notes that the grievor knew enough to copy a union representative, Elaine Young, on the January 15, 2015 email, which shows that she was also in contact with the Union during that time. Thus, it argues, that the grievor was fully aware by at least January 15, 2015 that the Employer had not granted her STSP entitlements, or any other entitlements she felt she had qualified for in 2014, but she did not file a grievance about this until late June 2017, about two and a half years later. It also notes that the grievor was well enough in 2015 to email the Employer on a number of occasions.
14The Employer relies on the following jurisprudence in support of its timeliness argument: Becker Milk Co. v. Teamsters, Local 647, Source decision, 1978 CarswellOnt 885 (K. Burkett); Greater Niagara General Hospital v. O.N.A., Source decision, 1981 CarswellOnt 1881 (S. Schiff); OPSEU (Ng) v. Ministry of Government Services (2010), GSB #2009-3379 (Mikus); OPSEU (Berday) v. Ministry of Transportation (2008), GSB #2007-3132 (Devins); OPSEU (Faulkner) v. Ministry of Community Safety and Correctional Services (2008), GSB #2006-2093 (Petryshen); OPSEU (Kavanaugh) v. Ministry of Community and Social Services (2009), GSB #2007-0136 et al. (Harris); and, OPSEU (Smith et al.) v. Ministry of Community and Social Services (2008), GSB #2006-2107 et al. (Gray).
15The Union argues that the three grievances before me relate to a connected course of events, and should therefore all be heard together. It notes that its January 8, 2020 particulars letter provides the background and narrative for the three grievances, and is important to understanding the context. According to the Union, the June 26, 2017 grievance, was about the grievor’s disentitlement to STSP benefits and other entitlements. Without those benefits, the Union claims the grievor was unable to obtain prescriptions and other treatments that would have alleviated her symptoms, and would have assisted her in her return to work. The Union argues that the grievance in question is part of a narrative of discrimination and harassment, and part of a course of conduct exhibited towards the grievor to keep her from the workplace.
16In the event that the arbitrator finds that the grievance is out of time, the Union argues that this is an appropriate case in which to exercise discretion under section 48(16) of the OLRA to extend the timeline to permit the grievance to be heard. With respect to Article 22.14.1, the Union posits that provision refers to the referral of the grievance to arbitration, and not to the time of the filing of the grievance, and therefore should not be determinative.
17The Union relies on the following jurisprudence in support of its arguments: OPSEU (O’Brien) v. Ministry of Community Safety and Correctional Services (2011), GSB#2003-1881 (Leighton); OPSEU (Stone) v. Ontario Clean Water Agency (2001), GSB#1111/99 (Johnston); OPSEU (Robbins) v. Liquor Control Board of Ontario (2015), GSB#2013-0526 et al. (Lynk); Saint-Gobain Technical Fabrics, Canada Ltd. v. UNITE (Parker), 2005 CarswellOnt 11331 (P. Chapman); and, Ontario Liquor Boards Employees’ Union v. Ontario (Liquor Control Board) (Brennan Grievance), [2002] O.G.S.B.A. No. 27 (R. Brown).
DECISION
18In reaching a decision on the preliminary motion, I have considered the parties’ submissions and have reviewed the jurisprudence provided to me. For the reasons to follow, I have found that the June 26, 2017 grievance is untimely.
19It is worth addressing at the outset the Union’s argument that this grievance is part of a connected course of events that are raised in the three grievances that should be heard together, and its assertion that it is also part of a pattern of harassment and discrimination that the grievor suffered, so that the Board should include the period going back three years from the date of the filing of the June 26, 2017 grievance.
20The June 26, 2017 grievance, which is at issue in this motion and has been outlined earlier, does not assert harassment. The June 1, 2017 grievance similarly, does not assert harassment. While that grievance does cite the Ontario Human Rights Code, it does so in the context of an allegation of the Employer’s failure to accommodate the grievor in her return to work efforts from October 31, 2016 on. The third grievance, filed on November 27, 2018, claims that the grievor’s employment was terminated without just cause and without progressive discipline.
21None of these grievances claimed harassment at the time of filing, and it is only on the day before the hearing of this motion that the grievor claimed that she was being harassed, and that was one of the reasons that she had not filed the June 26, 2017 grievance in a timely manner in 2014. That issue will be addressed later. However, at this juncture suffice it to say that there is nothing in the three grievances that would lead me to address the timeliness issue on the basis that this is a harassment grievance, and that therefore I should consider the Board’s jurisprudence regarding the so-called “three year rule”. I note that the three year consideration is in respect of the admissibility of evidence of harassment or discrimination, it is not about the timeliness of a grievance.
22Turning then to the timeliness issue, I have already outlined above the relevant provisions of Article 22, the collective agreement language that addresses the filing of grievances and the grievance procedure.
23Since the parties have agreed that the Board has the authority to consider s. 48(16) of the OLRA, I have also considered that provision in reaching a decision. For ease of reference, s. 48(16) states as follows:
Extension of time
- (16) Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.
24A recent and concise review of the test for determination of whether an arbitrator should exercise their jurisdiction to extend a time limit in the grievance procedure is found in the Robbins decision, cited above. In that case Arbitrator Lynk wrote as follows:
31The starting point for the determination of whether a legal decision-maker, operating under s. 48(16) of the Labour Relations Act, 1995, should exercise her or his jurisdiction to relieve against an untimely filed or advanced grievance is the 1982 ruling by Arbitrator Schiff in Greater Niagara General Hospital, supra. His award has become the touchstone for assessing timeliness claims in Ontario. Building upon an earlier seminal award on timeliness by Arbitrator Burkett in Re Becker Milk, supra, Arbitrator Schiff laid out six interrelated factors to assess the worthiness of a request to relieve against the time limits in a collective agreement so as to dismiss a grievance on the basis that it is untimely, and to not hear and decide the matter on its merits:
i. The nature of the grievance – The more significant the issue is to the parties – such as a termination or the imposition of serious discipline, or a vital collective agreement interpretation – the greater the weight that should be given to an extension. A matter of less significance will be accorded less weight.
ii. Whether the delay occurred at the launch of the grievance or at some later point in the process – If the delay occurred with a failure to initiate the grievance within the timelines, the employer will not learn what the grievor alleges nor have an opportunity to secure its own position. A prejudice caused by the failure to adhere to time limits may not be as serious to the employer if the delay occurred later in the process.
iii. Whether the grievor was responsible for the delay – A stronger presumption against any timeliness relief would exist if the grievor bore sole or primary responsibility for the delay. Notwithstanding this, if the responsibility for the delay fell entirely or largely on the union, this would not become a positive feature in favour of granting the relief. Rather, it would more likely have the effect of neutralizing the factor.
iv. The reason(s) for the delay – A finding of bad faith by the party that failed to file or advance the grievance would be a considerable mark against providing relief. Negligence, carelessness or disregard for the time limits would be less unacceptable, but still a matter of some concern.
v. The length of the delay – All things being equal, the longer the delay, then the greater the onus on the union and/or the grievor for providing a credible reason to explain the delay.
vi. Whether the employer could reasonably have assumed that the grievance had been abandoned – Union inaction that lulls an employer into a false sense of security may be given a weighty factor. This goes to the prejudice that an employer may face: it may well be lead to believe that no grievance is forthcoming or that the matter has been implicitly withdrawn by the union, and it may not take steps to protect its position, such as preserving memory, protecting evidence or marshalling arguments.
32In addition to this very helpful list of factors from Greater Niagara Regional Hospital, subsequent rulings on timeliness have issued some useful observations that have enriched the analysis into this question:
The sophistication of the grievor, and her or his familiarity with the grievance process, can be an element to be considered. If the grievor is, or had been, a local union officer, or had previously filed grievances, this may be a factor against extending time limits: Donwood Institute and OPSEU (1997), Source decision, 60 L.A.C. (4th) 367 (Brandt). Conversely, a grievor who had never filed a grievance before, and who depended on the union for guidance, may result in a more lenient approach towards timelines: Ontario (MCSCS) (Brennan), supra.
Arbitrators differ as to the significance of an initial failure to grieve unchallenged prior discipline which was used to justify a subsequent termination, based on the principles of progressive discipline. Some arbitrators have held that unchallenged prior discipline cannot be reopened merely because the grievor is now facing termination based in part on the prior record. There must be other, persuasive reasons to justify timeliness relief: Ontario (MCSCS) (McClelland), supra. Other arbitrators have said that unchallenged prior discipline which creates a ‘serious impact’ on the grievor requires the employer to demonstrate ‘real prejudice’ in order to thwart the operation of s. 48 (16). Real prejudice amounts to a course of action that would not otherwise have been taken and it must be a course of action that cannot be reversed without harm to the employer: Vale Inco Ltd, supra. This latter observation is broadly consistent with the requirement in s. 48 (16) that the prejudice to the employer has to be substantial.
A three month delay is not a modest delay, but nor is it, by itself, an intolerable length of time. While no hard-and-fast rule creating a bright red line based on the length of the delay exists, or should exist, given the other factors at play, requests for a time limit extension in this time range have been turned down – Ontario (MCSCS) (McClelland); British Columbia Public Service Agency, supra – and, conversely, have been allowed to proceed in order to be heard on their merits: Liquor Control Board of Ontario (Brennan), supra. To be sure, arbitrators have dismissed grievances when the timeliness breaches had been shorter than three months – Helen Henderson Care Centre, supra; and West Fraser Electro/Mechanical Ltd., supra – and permitted time extensions when the breach far exceeded three months: Re City of Toronto and CUPE, Local 43 (1990), Source decision, 17 L.A.C. (4th) 420 (Springate); and Re Ferranti-Packard Transformers Ltd. and USWA, Local 5788 (1993), Source decision, 36 L.A.C. (4th) 307 (Haefling).
Unions and employees owe a general obligation of due diligence to employers and the industrial relations process in ensure the timely filing and advancement of grievances: (Ontario (MCSCS) (Mazara). However, this must be balanced with the long-standing industrial relations rule that, as much as possible, workplace differences should be resolved on their substance rather than on technical or procedural issues: Blouin Drywall Contractors Ltd. and UBC (1975), Source decision, 8 O.R. (2d) 103 (C.A.); Vale Inco Ltd.
While the ultimate legal source governing the issue of timeliness in Ontario is s. 48 (16), adjudicators should pay attention to the intentions of the parties, as expressed by the language governing time limits in the collective agreement. If the parties have chosen mandatory language, even if they have decided not to preclude the operation of s. 48 (16), this should be a consideration in the decision-making: (Ontario (MCSCS) (Mazara); Liquor Control Board of Ontario (Gamble), supra; Helen Henderson Care Centre.
25The grievance before me is not one regarding the suspension or discharge of an employee, nor of a vital collective agreement interpretation. While it is a matter of lesser significance as it relates to sick leave credits and entitlements, I am nonetheless of the view that the issue raised by the June 26, 2017 grievance is one of some significance as it forms a backdrop to the issues that were addressed in the other two grievances.
26The delay occurred at the launch of the grievance. There is no dispute that there was a significant and lengthy delay in the filing of the June 26, 2017 grievance. It was filed somewhere between 2.5 and 3 years late, depending on when one begins to count. It is approximately 3 years late if the count begins around April or May 2014, by which time the grievor should have been aware that she was not getting the benefit of five paid sick days following having purportedly qualified for all sick benefits by virtue of having worked 20 consecutive days in February and March 2014. At that juncture, she was only working sporadically, and was therefore taking sick time off, so that was when she ought reasonably to have known of the problem.
27Taken at its best from the grievor’s perspective, based on her email of January 15, 2015 to the Employer, she was clearly aware at that time that she was not receiving any sick pay or STSP credits, or indeed any ancillary medical benefits, despite her view that she had worked the qualifying period in 2014. Working with that date, when the grievor clearly knew about the circumstances giving rise to her complaint, the June 26, 2017 grievance was filed about two and a half years late.
28The grievor was solely responsible for the extreme delay in filing the June 26, 2017 grievance. As outlined in Robbins, at para. 31(iii), there is a stronger presumption against granting timeliness relief where a grievor bears sole or primary responsibility for the delay.
29I turn now to consideration of the factor outlined in Robbins, at para. 31(v), that the longer the delay, then the greater the onus on the union and/or the grievor to provide a credible reason to explain the delay. The reasons that the Union provided at the hearing for the grievor’s delay in filing the grievance include that she was not aware of the time limit in the collective agreement; that she had commenced an approved medical leave in and around 2014 which impacted her ability to file a grievance; and that she faced ongoing harassment from her manager which caused a reluctance to file a grievance due to fear of retribution. Each of these reasons will be addressed in turn.
30While the grievor may claim that she was not aware of the collective agreement timeline for filing a grievance, I cannot accept that ignorance of the terms of her employment is a reasonable excuse for a 2.5 or 3 year delay in filing a grievance.
31In Faulkner, cited above, there was a 10.5 month delay in filing a grievance claiming that the employer had failed to accommodate the employee. The arbitrator found that a 10.5 month delay was lengthy, and although the union argued that the grievor was a new employee who was not aware of her rights, the Board stated “although the Union suggested that some consideration should be given to the fact that CO Faulkner was a new employee, all employees are presumed to be aware of their rights and obligations under the Collective Agreement” (p. 8). The Board found that the grievor had not acted with due diligence, that the length of the delay was considerable and extreme, and did not outweigh the nature of the grievance. The Board also noted that given the circumstances, it was not necessary to determine whether the Employer was substantially prejudiced by an extension (p. 9). The grievance was dismissed as there were no reasonable grounds for extending the time for filing the grievance.
32In Stone, cited above, while finding that the grievor was completely responsible for a 3.5 month delay in filing his grievance, the arbitrator noted that he was not a union official and that prior to filing that grievance, he had never filed an individual grievance before, or read the grievance procedure provisions of the collective agreement. The arbitrator accepted that while this was not an excuse for the grievor’s failure to pursue his rights in a timely manner, it was “at least an explanation for his inaction”.
33Thus, while I can accept that the grievor’s explanation for why she did nothing for so long was her lack of knowledge of the grievance procedure, I agree with the arbitrator in Faulkner, cited above, that all employees are presumed to be aware of their rights and obligations under the collective agreement. In this case, the grievor had been employed with the Employer since 2000, so she was certainly not a new employee by 2014 or 2015. As the Employer pointed out, the grievor was aware of all her sick benefit and other related entitlements, so she was not apparently unaware of her rights. Yet, she claims not to have been aware of her obligations under the collective agreement. Ignorance of the terms of employment, where they are fully articulated in a written collective agreement that is available to every employee, is not necessarily a reasonable excuse for failing to abide by the time limits set out in that agreement.
34I also cannot accept as a reasonable excuse for the delay that the grievor commenced an approved medical leave in or around 2014. Based on the facts before me, the grievor believed she had qualified for STSP and other credits as of March 2014. She was on and off work throughout the rest of that year until sometime in November 2014 when she finally went off on a medical leave for an extended period of time. As such, the grievor was in a position to file a grievance any time in early 2014 after she purportedly qualified for sick leave benefits, but was not receiving them.
35In the alternative, assuming without finding that the grievor did not know she had been disentitled to sick leave benefits in 2014, she certainly knew by January 2015, when she sent the employer an email so stating, and essentially outlining the same issue that she finally raised in the June 26, 2017 grievance. Clearly the grievor was capable of, and did, communicate with her employer while off on an approved medical leave, so I cannot find that she was incapable of filing a grievance, especially by January 2015. Finally, on this point, I note that there is no medical evidence before me to suggest that the grievor’s medical condition at the time impacted her ability to file a grievance.
36The grievor’s final excuse for not filing a grievance in a timely manner is her purported fear of retribution had she done so, because she alleges ongoing harassment from her manager. This is an allegation made for the first time on January 8, 2020, without any prior notice to the Employer in the years since these grievances were first filed. I note the Employer’s position that the grievor had never filed a WDHP complaint claiming that her manager had been harassing her. In my view it is simply too late in this proceeding for the grievor to now claim that was a reason she did not file a timely grievance in 2014 or early 2015. Even on a reading of the grievor’s particulars, which are not being accepted for the truth of their content at this juncture, there is nothing to suggest that the grievor’s manager had taken any retributive steps against her that could have caused her to have a fear of reprisal. As the Employer noted in its submissions, the grievor was hardly ever at work in the time leading up to her extended medical leave in November 2014, so it would be difficult to accept that it was a fear of retribution that caused her not to file a timely grievance.
37For the reasons outlined above, I cannot find that the grievor and Union have met the onus to provide credible reasons to explain the 2.5 to 3 year delay in filing this grievance.
38Finally, I turn to consider whether the Employer could reasonably have assumed that the grievance had been abandoned. As outlined in Robbins, cited above, at para. 31(ii), the failure to initiate a grievance within the time limit means that an employer will not learn about a grievor’s complaint, nor will it have the opportunity to secure its own position, leading to the employer being prejudiced by the delay. As well, as outlined at para. 31(vi), and as the parties to this collective agreement have themselves agreed at Article 22.14.1, a failure to file a timely grievance may lull an employer into a false sense of security, as it may believe that no grievance is forthcoming, or that the matter has been implicitly withdrawn by the union. It may therefore not take any steps to protect its position by protecting evidence, preserving memories, or marshalling arguments. This all goes to the prejudice to an employer when faced with an untimely grievance.
39All of the Board caselaw before me addresses circumstances in which grievances have been filed a few months late, and the employer has argued that the grievance was untimely, and that they were prejudiced by the delay. No caselaw before me dealt with a magnitude of delay of 2.5 or 3 years.
40In Ng, cited above, a grievance regarding three suspensions was filed one month after the third suspension; three months after the second suspension; and five months after the first suspension. In that instance the grievor believed they were all part of the employer harassing her, so she did not file a grievance in each instance when given the suspensions. The Board rejected that assertion, found that the responsibility for failing to file the grievance in a timely manner lay solely with the grievor; that her explanation for the delay was not reasonable; and that the length of the delay was significant. While the arbitrator considered that the grievance was about significant issues, i.e. disciplinary suspensions, she was of the view that did not override the delay, which she found to be “unreasonable and lengthy” (at para. 16), and declined to exercise her discretion to extend the time limits for filing a grievance.
41In Berday, cited above, in April 2007 a seasonal employee was advised that he would not be recalled to employment the following year; in August 2007 he received a document that advised him he would not be re-hired the following year; he told his union representative in April, and discussions between the union and management ensued, but the grievor did not file a grievance until December 2007. The arbitrator noted that since the nature of the grievance was one that engaged the grievor’s ongoing employment, she needed to proceed with caution. She found that there had been either a 4 month delay or, in her view, a more likely 7.5 month delay in filing the grievance, and there was no meaningful explanation for that delay. Since the delay arose in the initial stage of proceedings, she found that management may well have assumed that the issue had been abandoned by the union and grievor, and found the grievance was untimely.
42In Kavanaugh, cited above, a two month delay was found to be significant, and the arbitrator declined to exercise his discretion to extend the deadline for filing the grievance. In Smith et al., cited above, a delay of approximately 3 months was considered “substantial”, the deadline for filing grievances was held not to be a “technical” matter (para. 17), and the grievances were dismissed.
43The Union relied on the Saint-Gobain decision, cited above. However, that case involved a termination grievance, where the grievor had been off work on medical leave, and the employer had terminated his employment without consulting regarding his situation at the time. As well, there was only a 5 month delay in the filing of the grievance, compared to the 2.5 to three year delay in this case.
44The Union also relied on the Brennan decision, cited above. In that case there was a three month delay in the filing of a suspension grievance, and the issue arose when the grievor had subsequently been terminated from employment. As well, the grievor in that instance had asked the union to file a grievance about the suspension, but through inadvertence, the union representative never filed the grievance. In light of the particular circumstances, and because the issue was one of discipline and discharge, which related to the grievor’s continued employment, the arbitrator extended the time for filing the grievance.
45What is clear from a review of the jurisprudence is that each case addressing the delay issue must be decided on the particular facts pertinent to that particular employee (and/or union); their circumstances, and the collective agreement language.
46I must consider the language of the collective agreement in this case as it regards the consequences of a failure to meet a time limit in the grievance process. These parties have agreed that if a grievance is not processed by an employee or the union within the time allowed, it “shall be deemed to have been withdrawn” (Article 22.14.1). While the parties have also agreed that the GSB has the jurisdiction to apply s. 48(16) of the OLRA to extend the timelines at all stages of the grievance and arbitration process (at Art. 22.14.7), I agree with the arbitrator in Stone, cited above, that the intention of these parties in drafting their language was to include more “mandatory” language regarding time limits, and to impose a penalty for the failure to comply with the applicable time limits in the grievance procedure (at p. 8 of the decision).
47The Employer has asserted that it will be severely prejudiced should the June 26, 2017 grievance be permitted to proceed as the grievance was filed about three years late. This is especially so given the Union’s January 8, 2020 particulars, which for the first time, some six years later, allege harassment by a manager back in 2014 as the cause. According to the Employer, since the grievor was clearly aware in at least January 2015 that she was not receiving sick pay benefits to which she believed she was entitled, and had communicated as such to the Employer, it was reasonable for the Employer to conclude that she had abandoned any claim at the time since no grievance was filed at the time.
48In all of the caselaw reviewed, the delays in filing grievances were counted in months, and even in those instances, arbitrators often found that a delay of a few months amounted to significant delay. Where the delay is 2.5 or three years, it is reasonable to believe that the Employer thought there was no issue being taken with STSP credits or other sick leave entitlements, or that if issue had been taken in January 2015, it had been abandoned in the intervening time.
49It is difficult to see how an employer would not be substantially prejudiced by the passage of 2.5 or three years. It is not necessary to have to prove such prejudice where the delay is so extreme, as judicial notice can be taken that memories fade, and witnesses and documents may no longer be available to the Employer. In this instance, the Employer has asserted as much, and argues that it is extremely prejudiced by the late filing of this grievance.
50Having considered all of the factors outlined in the Robbins decision, cited above, as well as the considerations in s. 48(16) of the OLRA, for all of the reasons outlined above, I find that the June 26, 2017 grievance is untimely, and that in the exercise of my discretion pursuant to s. 48(16) of the OLRA, I cannot find sufficient bases to extend the time to file this grievance. As such, it is hereby dismissed, and the Union may not rely on any particulars that it has provided to the Employer in support of the June 26, 2017 grievance or the timeliness motion as it respects that grievance.
51I remain seized to hear the other two grievances on the hearing dates already set.
Dated at Toronto, Ontario this 17th day of January, 2020.