Ontario Public Service Employees Union (Gray et al) v. The Crown in Right of Ontario (Ministry of Transportation), 2021 CanLII 48274

GSB# 2019-2467

UNION# 2019-0506-0011

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gray et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Diane Gee

Arbitrator

FOR THE UNION

Georgina Watts Morrison Watts Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

HEARING DATE

January 18, 2021 and May 18, 2021

DECISION

1By way of decision dated February 26, 2021, the Board determined it had jurisdiction with respect to a portion of this grievance referred to as “survey stops” provided it is clear and unambiguous that the Employer’s directions in fact require the Transport Enforcement Officers to perform functions that result in a violation of the Highway Traffic Act R.S.O. 1990, c. H.8 (the “HTA”) or section 9 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c.11 (the “Charter”).

2On May 18, 2021, a hearing was convened at which the Union was called upon to provide evidence, such as a prior decision directly on point, that the survey stops are a violation of the HTA or section 9 of the Charter. The Union advised that it was not able to locate a decision in which such a finding had been made. The Employer moved, having regard to the Board’s decision of February 26, 2021, that the “survey stops” portion of the grievance be dismissed on the basis the Board lacked jurisdiction.

3Having regard to the Union’s inability to establish the survey stops are clearly and unambiguously a violation of the HTA or section 9 of the Charter, the Employer’s motion, that the survey stops portion of the grievance be dismissed on the basis the Board lacks jurisdiction, is hereby granted.