GSB# 2021-3286

UNION# 2021-0201-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (MacDonald)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Robin Lostracco Ontario Public Service Employees Union Senior Grievance Officer

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Labour Practice Group Counsel

HEARING

September 13, 2024

Decision

1Mr. Christopher MacDonald (“grievor”), a Fuel and Tobacco Inspector has filed a grievance dated December 17, 2021 alleging that the employer violated articles 2, 9.2 and 9.4 of the collective agreement, the Respectful Workplace Policy, the Ontario Health and Safety Act and any other applicable legislation and/or regulation. This decision determines a preliminary motion by the employer that the grievance be dismissed on the ground that it was filed beyond the 30 day time limit set out in the Labour Relations Act.

2This motion was argued on the basis of an Agreed Partial Statement of Facts, a Joint Book of Documents, and books of authorities, supplemented by brief testimony by the grievor.

3The union made the following alternate arguments in urging the Board to deny the motion: First, that the grievance was filed within the time limit; that if the filing was untimely the employer had waived its right to object; that in any event this grievance is a continuing grievance; and finally that, if the Board disagrees with all of the foregoing, it should exercise its discretion under section 48(16) of the Labour Relations Act to extend time limits. Union counsel asserted that if the union’s waiver argument is upheld, that would dispose of the timeliness motion without need for the Board to deal with any of the other arguments the union made. Employer counsel did not dispute that assertion.

4To understand the parties’ respective submissions on waiver it is necessary to examine the history of this grievance leading up to raising of the timeliness motion by the employer.

• The grievance was filed on December 17, 2021.

• The Formal Resolution Stage (FRS) Meeting was held on February 4, 2022.

• By letter dated February 25, 2022 the employer denied the grievance.

• The union referred the grievance to arbitration on March 2, 2022

• I was appointed as arbitrator shortly thereafter to hear and determine the grievance, and a hearing date was scheduled.

5The Board first convened on this grievance on November 21, 2022. Ms. Lostracco represented the union, and the employer was represented by Ms. Alissa Bryers, Employment Relations Advisor. After the parties made brief opening statements, the employer gave notice that a preliminary motion would be made for the dismissal of the grievance on the grounds that union had referred the grievance to arbitration prematurely contrary to article 22 of the collective agreement, and the Board therefore lacked jurisdiction over it. Following that mediation was attempted, but it became clear quickly that it would not be productive. The parties agreed that dates for continuation would be required.

6The grievance next came before the Board on April 4, 2024, with Ms. Lostracco and Ms. Lewis, legal counsel representing the respective parties. The parties made their requests for particulars and production of documents. While counsel discussed about getting a consent order from the Board, they were able to agree on all issues relating to particulars/ production, and timelines for compliance were agreed upon.

7Employer counsel gave notice that she would be making two preliminary motions, one claiming that the grievance was filed outside the mandatory time limits, and the other that the alleged facts do not establish a prima facie case. It was agreed that when the hearing resumes, the timeliness motion would be completed first, followed by evidence on the merits. It was further agreed that the “no prima facie case” motion would be argued at the end after the hearing of the merits is completed.

8When the hearing resumed on September 13, 2024, the parties dealt with the employer’s timeliness motion. Referring to the Agreed Statement of Facts, union counsel pointed out that the FRS meeting was held on February 4, 2022 following the filing of the grievance on December 17, 2021. After the grievance was denied by the employer on February 25, 2022, it was referred to arbitration on March 2, 2022. She pointed out that the employer made no mention of any timeliness objection at the FRS meeting, in its denial letter or any time before that. The union was notified of a timeliness concern for the first time two days before the hearing on April 4, 2024, and was raised with the Board at that hearing.

9Union counsel pointed out that both parties were fully engaged in preparing for the hearing on the merits of the grievance with no concerns about any timeliness issue. Counsel referred to a chain of emails between the union and employer during March, 2024 about the sufficiency/ insufficiency of production. When the union wrote to the Board on March 4, 2024 seeking an order for production of certain material, the employer responded that it would provide further production without the need for a Board order. Union counsel pointed out that there was no mention of timeliness anywhere in this chain of emails. The union provided its full particulars on April 23, 2023. When that was not productive they discussed process and case management issues, still with no mention of any timeliness issue. The timeliness objection was raised with the union by the employer for the first time on April 2, 2024, two days before the next hearing scheduled for April 4, 2024.

10Counsel submitted that the employer had taken a number of “fresh steps”, including going through the FRS meeting, issuing a denial letter, participating in exchange of particulars and production, and even engaging in mediation with the assistance of the arbitrator, without ever mentioning any timeliness objection. Citing authorities, she submitted that this is a clear case of waiver, since the union had no reason to believe until two days before the hearing that it would be required to defend against a timeliness motion.

11Employer counsel did not dispute the facts asserted by the union, but relied on an additional fact. She submitted that at the FRS meeting the employer had explicitly reserved the right to raise preliminary objections. Counsel agreed that the employer’s reservation was a general one, the right to raise “any preliminary objections”, and conceded that timeliness was not specifically mentioned. Counsel explained that the employer was represented at the FRS meeting by managers and staff, who were not lawyers. Therefore, it is understandable that they would not be aware of the legalities and were not able to specify what the preliminary objections would be. The timeliness objection was specifically identified, and the union was given notice as soon as legal counsel “got involved”.

12Employer counsel further submitted that the right to object to the timeliness of filing a grievance is a substantive right of the employer, not a procedural one, and that a substantive right is not subject to the doctrine of waiver. She relied on the following statement in Brown and Beatty, Canadian Labour Arbitration (5th edition) at 2.63 under the title “Waiver of Procedural Irregularities” which reads, “Nevertheless, where the right in question is substantive rather than procedural, simply taking a fresh step or proceeding without objection will not normally waive that right”.

13In reply, union counsel disagreed that the timeliness objection was raised as soon as legal counsel got involved. She referred to documentation and pointed out that Ms. Lewis was retained and took over the file long before April 2, 2024 when the objection was raised for the first time. She submitted that in any event, even before a lawyer got involved, the employer was assisted by an Employment Relations Advisor and other HR staff who are, and should be, knowledgeable about the employer’s rights and obligations under the collective agreement and applicable legislation.

CONCLUSION

14The statutory requirement is that a grievance be filed within 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”. Having regard to the facts here, I find that the circumstances giving rise to this grievance came to the attention, or at least ought reasonably to have come to the attention of the grievor, when the employer informed the grievor that the employer was ordering the type of apparel it had decided to be appropriate, despite his repeated complaints that this would not be consistent with his health and safety rights under the collective agreement and legislation. The 30 day clock started at that time. The grievance was filed well beyond the 30 day time limit. Therefore, the Board finds that the grievance was not filed in a timely manner.

15There is no dispute that the employer’s objection to the late filing of the grievance was first raised on April 2, 2024, two days before the hearing scheduled before the Board. I will consider the arguments employer counsel made in submitting that the employer had nevertheless not waived its right to raise the timeliness objection.

16The excerpt from the Brown and Beatty text (see, Para.12 (Supra), does not assist the employer. The authors there simply state that waiver does not normally apply where the right raised is a substantive right and not a procedural right. However, they do not state that the right to raise a timeliness objection to the filing or the referral of a grievance to arbitration, is a substantive right. To the contrary, the authors wrote as follows under the heading “Waiver of Procedural Irregularities”:

In its applications, waiver isa doctrine that parallels the one utilized by the civil courts known as “taking a fresh step”, and hold that by failing to make a timely objection and by “creating a grievance on its own merits in the presence of a clear procedural defect, the party waives the defect.” That is, by not objecting to failure to comply with mandatory time-limits until the grievance comes on for hearing, the party who should have raised that matter earlier will be held to have waived non-compliance, and any objection as to arbitrability will not be sustained. This has been held to be so even though there was a timely objection to arbitrability but not one that related to the failure to meet time limits. Where, however, the objection to timeliness is made t (sic) the earliest opportunity, even if it is not made in writing, it will preclude a finding that the irregularity has been waived.

17That statement is consistent with the arbitral jurisprudence. This Board, as well as arbitrators in general, have consistently applied the doctrine of waiver to bar motions relating to failure to comply with time limits set out in collective agreements. This Board has also rejected the argument that such rights are substantive and not procedural. In Re Sagiuliano 2011-233 (Briggs) at para 51, the Board wrote:

In the past, it has been argued by the Employer that the issue of time limits, particularly at the referral to arbitration stage, is a jurisdictional and not procedural matter and therefore cannot be waived. However, in Re Moody, supra, this issue was squarely addressed Re Vitorino, 2009-1293, by Vice-Chair Abramsky, at paragraph 33 as follows:

While it is true that Section 48(16) of the Labour Relations Act applies only to the grievance procedure, and not a referral to arbitration – at least under the parties’ collective agreement – the absence of a statutory provision does not change the nature of a time limit. It remains procedural and is subject to waiver. The absence of statutory authority to extend time limits does not change an untimely referral into a matter of fundamental, substantive jurisdiction that cannot be waived.

18The employer’s position that the right to object to the late filing of the grievance is not subject to waiver because it is a substantive right fails.

19The employer’s argument based on a general reservation of its right to raise preliminary objections has also been dealt with in numerous decisions, including decisions of this Board. In Re Vitorino, (Abramsky) supra, at para. 32, the Board commented as follows about broad reservations of a right to raise objections:

I have some real concern about permitting such a broad retention of the right to raise objections that may arise in the future. It creates a potential for abuse – just send a broad-based email reserving your right to object and you create a shield against any claims of waiver. It may also undermine the ability of the other party to know, well in advance, that such an objection will, in fact, be raised.

20In Re Sagiuliano, (supra) the Board actually had that argument made, in circumstances where the union had failed to comply with the mandatory time-limit in the collective agreement for referral for the grievance to arbitration. The employer argued that there could not be any waiver because it had reserved its right to object. That reservation had been made in an employer communication to the union sent some eight months after the time limit for referral to arbitration had passed. In that communication the employer suggested to the union that the parties engage in mediation on the first day of hearing, and if the union agrees to do so, the employer was willing to “put on hold any requests for particulars/disclosure and any preliminary objections …”. That is very similar to the argument made in the instant case.

21At paragraphs 23 to 25, Vice-Chair Briggs sets out the employer counsel’s submissions on waiver:

Mr. Shahab said that the Union could have objected to the Employer’s general assertions of possible preliminary matters. It did not respond to the Employer suggesting that it could not reserve its right and that if there were objections they were to be made at that time. If the Union had done that, the Employer could have and would have made the specifics of any objection known at that point. The Union cannot raise waiver after the Employer did precisely what it warned the Union it might do. If a right to reserve is raised and not objected to then the amount of time between the reservation and the specifics being provided is immaterial. Further, it does not matter what takes place in the interim.

The Employer noted that the Union was given notice of possible objections prior to mediation. The fact that the Employer engaged in mediation after having done so should not be held against it. Any attempt to resolve outstanding matters should be encouraged and ought not to be utilized to defeat a preliminary objection. From a broad labour relations perspective such an approach would be an improper way to do business.

The Employer also asserted that the scheduling of this matter before this Board does not constitute waiver because the Employer had no subjective intention to waive its rights. It was argued that because the intention to raise a preliminary objection was reiterated on March 2, 1013, (sic) it is apparent that there was no intention to waive rights.

22In finding that the employer had waived its right to object, at paragraphs 54 to 59 Vice-Chair Briggs wrote:

(54) After consideration of all the facts in this matter, some of which are quite peculiar to this case, I am of the view that the Employer waived its right to raise a timeliness objection because it allowed eight months to pass before there was any mention of preliminary issues. In its May 29, 2012 correspondence to the Union, the Employer suggested mediation on the first scheduled day of hearing and said that if this was acceptable it was willing to, “put on hold any requests for particulars/disclosure and any preliminary objections until after June 19.”

(55) According to the Employer, it is this communication that made it clear to the Union that it would raise this objection and therefore it has not waived the right to do so. I must disagree. This blanket statement about putting on hold of a potential preliminary objection is insufficient and does not constitute notice of a timeliness objection.

(56) Notice of an objection is, at least in part, to give the other side an opportunity to assess whether it wishes to continue with litigation in the face of allegations regarding a technical breach. There was nothing in the May 29, 2012 communication that would allow the Union an opportunity to undertake such a review. The Employer did not even commit that there was a preliminary objection of any sort. It merely put the conversation about such a possibility “on hold” till after the mediation session held on June 19, 2012.

(57) However, it was not raised in the weeks or months following June 19, 2012. Indeed, it was not mentioned again until March 3, 2013, some seven months later that there was a further general reference to preliminary matters – no specific mention of a timeliness objection.

(58) The Employer would have me find that it clearly did not waive its intention to raise a timeliness objections as evidenced by its reminder to the Union of its “intention to raise potential preliminary objections” in the March 3, 2013 communication. Again, in my view, this statement would not put the Union in a position where it would have known what it should be concerned about.

(59) The Employer suggested that the Union could have and should have objected to its declaration that it was reserving its rights. I find that assertion difficult to understand in the facts of this case. How could the Union have challenged such an unspecified objection? There was no indication whether the objection was jurisdictional or procedural. Was the Employer’s concern expansion of grounds, no prima facie case or timeliness?

23In Re OPSEU and the Ministry of Community Safety and Correctional Services 2003-3075 (Herlich), the Board was called upon to decide whether the employer had waived its right to object the late filing of the grievance. Following a review of the case law, at paragraph 42 Vice-Chair Herlich wrote:

These citations and the cases referred to disclose that a “fresh step” might consist of little more than participation in subsequent steps of the grievance procedure or in the referral of a grievance to arbitration. …… At a minimum the Employer’s failure to raise any timeliness issue for the period of approximately 1 – ½ years between the filing of the grievance and the eve of the hearing before me requires some compelling justification to avoid the conclusion that the Employer has waived its right to raise any timeliness objections.

24At paragraph 49 he commented:

……if I were persuaded that something very recently brought to the Employer’s attention had set off the timeliness warning light for the first time – even at this late stage of the process – I might not be persuaded to conclude that the Employer had waived its right to make the objection. However, I was provided with copies of both the grievance dated October 15, 2003 and the particulars provided by the Union dated March 14, 2005. There is simply nothing in the latter document which is not already contained in the grievance itself and which brings any issue of timeliness to the fore. Indeed, nothing can be pointed to in the Union’s particulars as raising timeliness issues for the first time in the Employer’s mind. In other words, on March 14, 2005 the Employer was in no better position to raise a timeliness objection than it had been on October 15, 2003. And (apart, of course, from the imminent commencement of the arbitration proceedings) neither did it suddenly fact any more pressing urgency to do so. In the interim it had foregone any opportunity to raise the issue either during the grievance procedure or during the Joint File Review or by way of any other less formal communication between the parties.

25In the instant case, the reservation defence relied upon by the employer is also a general one, that is the right to “any objection”. The authorities consistently require that the employer raise the objection “at the earliest opportunity” or at least “in a timely fashion”. This is required for several important reasons. It avoids the waste of time of the parties, and sometimes of the Board, preparing particulars and disclosure, sometimes even litigating, issues relating to those. Raising of objections in a timely way enables the union to assess its position, whether to proceed on the road to litigation, or settle/withdraw the grievance. Moreover, it ensures that the union would not be forced either to prepare a defence against a timeliness motion on short notice, or to seek an adjournment of the scheduled hearing. In other words, the requirement is not technical or trivial. It is a very important, rational and purposeful one.

26In Re OPSEU and the Ministry of Community Safety and Correctional Services (supra) the Board recognized that it may not find waiver, where the employer can show that the non-compliance with the time-limit did not, and could not reasonably have come to its attention any earlier, and that it raised the objection as soon as it became aware of the non-compliance.

27In the case at hand the employer did not make such an argument. The employer’s explanation was that the general preservation of the right to make “any preliminaries” in this case was made by non-lawyers unaware that a reservation must specify the right it was reserving and that as soon as legal counsel “got involved”, the objection to the late filing was specifically made. Relying on documentary evidence, union counsel made detailed submissions that long before legal counsel was retained, Employment Relations and Human Resources staff, who were familiar with the collective agreement, were involved, and that in any event legal counsel was retained long before April 2, 2024. I will not deal with those submissions because they are irrelevant. The obligations and rights under the collective agreement are on the employer. That is the Ministry, and not any individual. Therefore, even if all individuals involved were not aware of the obligation to raise the specific objection to the late filing of the grievance in a timely way, it does not avoid the application of the doctrine of waiver. It is up to the employer and the union to determine their representatives at the various stages of the grievance/ arbitration process. Whoever is so appointed speaks and acts on behalf of the party that appointed him/her. Following the filing of the grievance on December 17, 2021, the employer conducted the FRS meeting, issued its denial of the grievance, became aware of the referral of the grievance to arbitration, the appointment of the arbitrator and the scheduling of a hearing for November 21, 2022. The employer, represented by an Employment Relations Advisor, engaged in settlement discussions. Then the employer attended a second day of hearing on April 4, 2024, this time represented by legal counsel. The objection to the late filing of the grievance was mentioned for the first time on April 2, 2024, a mere two days before that hearing. The detrimental consequences of the union not getting timely notice of what the objection is come into play in these circumstances. On those undisputed facts the conclusion is unavoidable that the employer waived its right to object to the late filing of the grievance by the operation of the law, whether or not it intended to do so.

28I find that the employer waived its right to object to the late filing of the grievance. The employer’s motion is therefore denied. I remain seized of the grievances.