GSB# 2015-2673

UNION# 2015-0337-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gallina)

Union

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 25, 2021

Decision

1A grievance dated September 19, 2015, filed by Mr. Louie Gallina (“grievor”) came before the Board pursuant to article 22.16 of the collective agreement. Mediation held on September 23, 2020, did not resolve the grievance. This decision deals with a motion by the employer that the grievance ought to be dismissed on the grounds that it was not filed within the time limit in article 22.2.

2The statement of grievance reads:

“After I got full-time at Toronto East Detention Centre I paid back 18 months but now I found out that is not what happened. I also was on WSIB in 1992 for about 1 year and continued paying into my pension; OPSEU trust told me that’s not what happened. Also during this time I was targeted by management and WSIB told them they were not to contact me unless through WSIB, due to how bad harassment got from management. When I contacted OPSEU Trust they could not understand why they had no paperwork from MTEDC during this time. I did pay into this so why was it not put into my pension for me. The settlement desired is set out as, “My pension needs to reflect 18 months of paid-back time.”

3At the direction of the Board each counsel recited the facts relied on for purposes of the timeliness motion. Neither party took issue with the facts asserted by the other.

Employer Submissions

4Counsel pointed out that article 22.1 contemplates that grievances should be resolved “as quickly as possible”. He submitted that the parties intended that all parties exercise due diligence to achieve that goal. More specifically he relied on article 22.2 which provides that a grievance may be filed “… 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…” He submitted that the test, therefore, not subjective.

5In taking the position that the grievor, had he exercised due diligence, should reasonably have become aware of the alleged breach long before September 2015, counsel relied on the fact that the OPSEU Pension Trust (“OPT”) as administrator of the pension plan, is required by the Pension Benefits Act and regulations thereunder to issue annual statements to all members of the pension plan. The grievor would have received those statements for years 1993 and 1994 and each year thereafter. These statements are required to set out pension information including the normal date the member is eligible to retire, his/her total years of pensionable employment, and the date he/she would be eligible to retire early on an unreduced pension.

6Counsel submitted that had the grievor carefully reviewed these statements, he could have discovered much earlier than 2015 that there had been no pension contributions credited to his pension account for a period of some 18 months in 1993 and 1994, although funds had been withheld for that purpose by the employer. He should have grieved at that time. Instead he chose to remain willingly blind for two decades, and filed the instant grievance in 2015. Employer counsel submitted that in the circumstances, it is not an acceptable excuse for the grievor to assert that until 2015 he was unaware of the alleged breach by the employer.

7Counsel reviewed the six factors arbitrators typically consider in determining whether to exercise the arbitral discretion to extend time limits, and how those apply to the circumstances here. Those factors are (1) The nature of the grievance (2) Whether the delay occurred at the filing stage or later. (3) Was the grievor responsible for the delay. (4) The reason for the delay. (5) The length of the delay. (6) Whether the employer could reasonably have assumed that the grievance had been abandoned. Counsel reviewed each of the factors as they apply in the instant case and submitted that they favour the Board declining to exercise its discretion to extend time limits.

8Employer counsel relied on the following authorities: Re Pereira, GSB 2016-1987 (Anderson); Re Bremner, GSB 2017-2936 (Misra), Re Memorial University of Newfoundland, (2018) 291, L.A.C. (4^th) 408 (Outhouse); Re Gamble, GSB 1996-1635 (Gray); Re South Bruce Grey Health Centre, (2020), 319 L.A.C. (4^th) 435 (Hayes).

Union Submissions

9Union counsel submitted that the grievance was a continuing one. In the alternative he submitted that since the grievor was aware that the amount of his pension contributions had been withheld by the employer, it was reasonable for him to have assumed that the amounts withheld had been remitted by the employer in the normal course. Since his retirement date was many years down the road, he could not reasonably be expected to scrutinize the annual statements from OPT each year like a forensic accountant, to ensure there was no problem. It was only in 2014 that he found out from OPT that there was a period of time in the early nineties showing no pension contribution for him. Even at that point he did not know what happened to the money that had been withheld by the employer. He had no inkling that the employer was responsible for the missing pension contributions. As soon as he found out that the employer was responsible, he sought an explanation from the employer. When none was forthcoming, he filed the grievance.

10Counsel submitted that until the grievor discovered that the employer was responsible, he could not have known that he had grounds to file a grievance against the employer. Therefore, for purposes of time limits for filing the grievance, the clock started to run only at that point. Until then, the circumstances giving rise to the grievance had not come to his attention. Nor can it be found that those circumstances “ought reasonably to have come to the attention of the employee” as contemplated in article 22.2.

11In the further alternative, union counsel submitted that if the Board does not agree with either of the foregoing submissions, despite the extra-ordinary delay, in the particular circumstances of this case the Board should exercise its discretion to extend time limits and proceed to determine the merits of the grievance. He also reviewed the six factors arbitrators consider in deciding whether to extend time limits as they apply to the facts in this case and submitted that considering the totality of the facts, they support extension of time limits.

12The union relied on the following authorities: Religious Hospitallers of St. Joseph of the Hotel Dieu of Kingston, 1992 CanLII 14621 (ON LA), 29 L.A.C. (4^th) 326 (Stewart); Port Colborne General Hospital, 1986 CanLII 6715 (ON LA), 23 L.A.C. (3^rd) 323 (Burkett); Parking Authority of Toronto, 1974 CanLII 445 (ON HCJDC), 5 L.A.C. (2^nd) 150 (Adell); Re Robbins GSB 2013-0526 (Link).

Employer Reply

13Employer counsel reiterated his submissions on the issue of extension of time limits and distinguished the authorities relied on by the union.

14Counsel referred to the Re Memorial University decision (supra), which was followed in Re South Bruce Grey Health Centre (supra), as standing for the proposition that in the absence of recurring breaches, a grievance is not a continuing one merely because the losses resulting from a breach continue. He submitted that the alleged breach occurred the early 1990s and was not repeated beyond 1994, although the impact of that breach, that is the grievor’s losses, may continue presently and even into the future. The alleged magnitude of those losses, estimated by the union to be approximately $5000 a year as long as the grievor is in receipt of his pension, does not make the grievance a continuing one.

15Counsel also addressed the issue of when the time limit in article 22.2 began to run. Counsel submitted that the test in article 22.2 language, “ought reasonably have come to the attention of the employee” is not subjective. It was not reasonable for the grievor to assume that everything was fine with his pension contributions merely because contribution amounts had been deducted by the employer. Had he exercised due diligence, he would have reviewed the OPT annual statements closely. Had he done that he would have realized that his unreduced early retirement date set out in the statements was not what it should be. That would have raised a red-flag and he would have made inquiries from OPT and/or the employer. Instead, he waited till he was close to retirement before looking into his pensionable service status. He received red-flags by way of the OPT statements every year, but chose not to review them carefully at the time. Had he been diligent he would have become aware in or around 1994 that he had grounds to grieve.

DECISION

16The initial issue to be determined is whether the grievance was filed within the time-limit in article 22.2. The union’s first two arguments are to the effect that it was timely, because it was a continuing grievance, and/or because it met the time limit set out in article 22.2 in any event. The submissions on the Board’s exercise of discretion to extend time limits would become material only if both of those positions are rejected and the grievance is found to be untimely.

17Having considered the particular facts presented and the submissions of the parties, I conclude that the grievance was timely and met the time limit in article 22.2. In reaching that conclusion I accept the union’s position on the issue phrased by the parties as “When the timeliness clock started to run” in this case. There is no suggestion by the employer that the grievor had actual knowledge until 2015 that he had grounds to file his grievance against the employer. In Re Bremner, 2017-2936 (Misra) (supra), based on the evidence the Board concluded that the grievor filed the grievance in 2017, when he “clearly knew” in 2015 about the circumstances giving rise to her grievance, and that the grievance was therefore untimely. In contrast, here the grievor became aware that there was a period with missing pension contributions in the early nineties only in 2014. At that time, however, he was not aware who was responsible for that situation. In 2015 he learned that the period without pension contributions resulted from the employer’s failure to remit monies it withheld for that purpose to the OPT. There is no assertion that he did not file the grievance within 30 days of becoming aware of that information.

18Rather, the employer’s position is that even though the grievor may not have gained actual knowledge of the circumstances giving rise to the grievance until 2015, that information “ought reasonably to have come to the attention” of the grievor much earlier had he been more diligent. The basis for his position is the fact that the grievor received annual statements from OPT setting out information about his pension status. The evidence is that those statements set out his current total pensionable employment period, the date when he would be eligible to retire in the normal course based or age, and the earliest date he would reach eligibility to retire early without reduction in pension based on age plus year of pensionable service. It is the employer’s position that had the grievor been more diligent, based on this information the grievor would reasonably have been able to ascertain that all of the pension contributions he had made were not reflected in his OPT pension account. The grievor, however, was not diligent. As counsel put it, “he chose to remain willingly blind” until 2015.

19I disagree with that characterization. It is a question of fact in each case whether or not an employee should reasonably have become aware of the circumstances giving rise to a grievance. If the grievor could reasonably be said to have been grossly negligent in not paying attention to information he had received indicating a problem, the employer’s submission would have had merit. On first blush a 20-year delay certainly seems unreasonable. However, on the unique facts of this case, I agree with union counsel that the grievor cannot be said to have been grossly negligent or willingly blind. It is agreed that through the relevant period the grievor received confirmation that the employer had appropriately withheld the amount of pension contributions. The OPT annual statements did not set out periods of time for which pension contributions were not received. The problem could have been discovered only by a detailed analysis of the information in the OPT statements in to confirm that each pension contribution the employer had deducted had in fact been properly remitted by the employer, and credited to his pension account. However, that in my view is way beyond what the parties would have intended by the “ought reasonably” language in article 22.2. Employers routinely withhold amounts from employee wages for various purposes such as income tax, union dues, insurance premiums, payments for health benefits etc. The obligation to withhold these amounts and to remit them to the appropriate party may arise from Statute/Regulations or from agreements. If I am to accept the employer’s position, that would impose an obligation on employees to investigate and confirm that every such deduction set out in their pay statements have in fact been remitted and credited appropriately, even in the absence of any indication of a problem. If they do not do that promptly, they run the risk of being denied the right to seek a remedy for the losses that result by filing a grievance for the failure on the part of the employer to remit deductions it as it was obliged to do. That in my view is not a reasonable interpretation of the language of article 22.2, or the duty of due diligence expected of employees.

20Employer counsel relied heavily on the long delay in the filing of the instant grievance. The length of delay is a relevant factor to be considered in interpreting article 22.2, but only in a limited way. The “ought reasonably” language in article 22.2 and the applicable test do not vary depending on the length of delay. Rather, the Board must determine in each case whether the grievor should reasonably have become aware that there were circumstances that give rise to a grievance earlier than the time the grievance was filed. In this case the Board must decide whether the grievor should reasonably become aware of the alleged breach which occurred some 20 years earlier than 2015. For the reasons set out, on the particular facts of this case, it is not reasonable to come to such a conclusion. Therefore, I find that despite the length of the delay, the grievance was filed within the time-limit in article 22.2. In light of that, it is not necessary for the Board to address the alternate submissions of the parties. The Board remains seized.