GSB# 2019-3028; 2020-1924

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

The Association of Management, Administrative and Professional Crown Employees of Ontario (McCallum)

Association

• and –

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

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE ASSOCIATION

Christine Davies Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 9, 2021

Decision

1There are two grievances¹ before me. The Complainant stopped working for reasons of disability on April 13, 2017. The first grievance raises several issues, including delays on the part of the Employer in providing the Complainant with the forms she required in order to apply for Long Term Income Protection (“LTIP”) from July, 2017 until September or October, 2017. The grievance was filed on January 28, 2020 and revised on February 12, 2020. The Complainant returned to work in April, 2020. The second grievance relates to issues arising since her return to work. It was filed on October 5, 2020 and revised on October 23, 2020.

2The Association provided particulars in response to a request from the Employer. The Employer gave notice that it intended to bring four preliminary objections. Two of those objections relate to issues of remedy. The parties agreed to bifurcate issues of remedy and on that basis the Employer agreed to defer its objections related to remedy. This decision determines the Employer’s other two preliminary objections.

Timeliness of Dispute With Respect to Delay in Providing LTIP Forms

3The Employer seeks to have the allegations concerning its failure to provide the LTIP forms dismissed on the basis that they are untimely. Those allegations relate to the time period July, 2017 until January 26, 2018. The grievance in relation to those allegations was filed on January 28, 2020, but since the parties agreed to hold timelines in abeyance as of December 16, 2019, the grievance can be treated as having been filed on that date.

4For the purpose of the Employer’s preliminary motions, the parties filed an Agreed Statement of Facts. That Statement indicates that it is not to be relied upon for the hearing on the merits. It also provides:

The parties are agreed that no adverse inference should be drawn from either party’s failure to call a witness or cross-examine a witness given their agreement [to] proceed by way of agreed facts.

5Article 15 (3.1) of the collective agreement provides:

If the complaint is not resolved to the satisfaction of the employee through the informal resolution stage, the Association, on behalf of the employee, may submit a dispute in writing to the manager, for transmittal to the designated management representative, 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.

6There is no dispute that the grievance in this case was filed well outside of the time period provided for in Article 15 (3.1).

7The parties agree that section 48(16) of the Ontario Labour Relations Act, 1995 applies and gives me the discretion to extend the time lines at any step in the grievance procedure “where satisfied that there are reasonable grounds for the extension and the opposite party will not be substantially prejudiced by the extension.”

8The Employer’s position is that there are no reasonable grounds for an extension and that it would be prejudiced. The Association’s position is that there are reasonable grounds and that the Employer would not be prejudiced.

9The Employer notes it is incumbent upon the Association to establish reasonable grounds for the extension. The Employer notes six factors which are typically considered by arbitrators in deciding whether or not to extend timelines in the grievance procedure:

(i) the reason for delay;

(ii) the length of delay;

(iii) the nature of the grievance;

(iv) whether the delay occurred in initially launching the grievance or at a later stage;

(v) whether the grievor is responsible for the delay; and

(vi) whether the employer could reasonably have assumed the grievance had been abandoned

The Reason for the Delay

10The major dispute between the parties relates to the reasons for the delay. In support of its position, the Association relies upon a letter dated December 14, 2020 from the Complainant’s family physician, Dr. Tyler Curtis. That note reads:

This letter is in response to your request for information regarding this patient's delay in filing a dispute regarding delayed provision of LTIP forms in 2017.

I can confirm that from April 2017 until December 2019, the patient did have medical diagnoses which would have Impacted their ability to submit the dispute In question. They were under the care of myself and a specialist and were receiving treatment for these conditions during the listed period. Without divulging diagnoses, the patient was