GSB# 2023-00379

UNION# 2023-0582-0020

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Razac)

Union

• and -

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

Employer

BEFORE

Brian McLean

Arbitrator

FOR THE UNION

Nancy Dhugga Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Asma Hatia Treasury Board Secretariat Employee Relations Advisor

HEARING

January 11, 2024

Decision

1The issue before me is whether this grievance should be permitted to proceed after the Grievor advised that she was withdrawing the grievance and then had a change of mind a number of days later. The parties filed written submissions in support of their positions. This award determines the issue.

Background Facts

2Bernadette Razac (the "Grievor") is a Nurse 2, General at Toronto East Detention Centre who was hired by the Ministry of the Solicitor General (the "Employer") in 2005.

3On October 4, 2022, the Grievor began an authorized sick leave. On March 7, 2023, the Grievor exhausted her Short Term Sickness Plan ("STSP") credits. Between March 8, 2023 and April 9, 2023 ("the lost income period"), the Grievor remained on an authorized sick leave and did not receive any income from the Employer. On April 10, 2023, the Grievor returned to work at the detention centre and continues to be employed there.

4On April 17, 2023, the Grievor filed this grievance claiming wages during the lost income period.

The Mediation

5On January 11, 2024, the parties attended before me for the first day of hearing. The parties used the day to engage in mediation.

6At the end of the mediation session, the Grievor indicated that she would withdraw her grievance, and the Union advised that it would provide the Employer with a signed withdrawal form as soon as possible.

7On January 15, 2024, Employer counsel emailed Union counsel to inquire about the grievance withdrawal form, which had not yet been received. Union counsel replied that they were following up with the local union for the form and did not dispute that the grievance was withdrawn. The Union advises that on January 18, 2024, the Grievor told Union counsel that she did not feel comfortable signing the grievance withdrawal form. On January 19, 2024, Employer counsel followed up again, and on January 25, 2024, Union counsel indicated that they had followed up with the Grievor for the form.

8On January 30, 2024, the Grievor advised the Union that she was recanting her decision to withdraw the Grievance. The Union advises that the Grievor believes that not all legal arguments were presented at the mediation.

9On February 2, 2024, Employer counsel followed up again and stated that in the absence of receiving the withdrawal by February 9, 2024, the Employer would be seeking to have a call scheduled with me in order to have the withdrawal enforced.

10Union counsel responded on February 8, 2024, and indicated that they had followed up with the Grievor to inquire when she would be providing the signed withdrawal form and had informed her that the Employer would seek to have the withdrawal enforced.

11On March 13, 2024, Union counsel advised the Employer and me that the Grievor had recanted her decision to withdraw the Grievance and had now raised concerns that, on the merits of the grievance, an argument relying on Article 45.1 of the Collective Agreement should be made.

12The Grievor never provided the withdrawal form and now seeks to pursue this grievance.

13The Union advises that the Grievor requests that a comprehensive and objective review of her grievance be conducted by the GSB to ensure that all pertinent details are thoroughly examined. Accordingly, the Grievor is requesting an additional hearing date to be scheduled in this proceeding before the Board.

14The Employer asserts that the Parties reached a legally binding resolution on January 11, 2024, when Union Counsel, on behalf of OPSEU and the Grievor, unequivocally stated that the grievance was withdrawn. This was accepted and understood by all parties. It notes that I indicated to the parties on February 29, 2024, that, with respect to the mediation held on January 11, 2024, I had reported to the GSB that the Grievance was withdrawn.

15The Employer notes that this Board has repeatedly held parties to the agreements they have made and that contractual law principles are applicable in this setting. The Employer asks that the Union be held to the withdrawal of the Grievance.

16The Employer relies on OPSEU (Coelho) and Ministry of Children and Youth Services (2013) GSB 2011-2422 et al (Lynk) decision, at para 31, where Arbitrator Lynk stated:

Many times more grievances are filed in the unionized Canadian workplace than the arbitration process could ever hope to adjudicate through litigation. Accordingly, reality demands, with the full encouragement of the law, that the parties find productive ways of managing differences and disagreements. Ensuring the sanctity of an agreement is one significant feature of this legal encouragement. If employer and unions could easily repudiate their agreements with each other, especially after one party subsequently develops buyer's remorse, then the elaborate industrial relations machinery that mixes legality, flexibility, durability, informality, compromise, mutual interest, workplace rights and trust would quickly clog with sand.

In the same decision, Arbitrator Lynk relied on a set of principles established by case law that help to establish whether a document or a set of proposals exchanged during negotiations between the parties have crystallized into a legally binding agreement. Arbitrator Lynk indicated that his reading of the cases had yielded the following principles, found at page 14, para 33 of the decision:

a. The classical principles of contract law apply: offer, acceptance and consideration. The key determinant is whether the parties have reached a common agreement, a meeting of minds, on all of the substantive issues on the table. An agreement is reached at the moment when all of the substantive matters in dispute have been resolved, there is nothing substantive left to be negotiated, and the parties have intended to achieve resolution of the matter on these terms. (Re TransAlta Utilities Corp., supra.; Re Architectural Mouldings Ltd., supra.). The test is objective.

b. The representatives of the parties reaching the agreement must have the authority to bind the parties. (Re Architectural Mouldings Ltd.)

c. The fact that some secondary details might still require elaboration would not be usually sufficient to negate the crystallization of a binding agreement, unless this was an express condition agreed upon during the negotiations.

d. The parties can be bound by oral commitments, as long as the evidence demonstrates that they have unconditionally agreed to settle the substantive issues between them (City of Toronto v. Toronto Civic Employees Union, Local 416 (Lewis), [2002] O.L.A.A. No. 531 (Luborsky)). Reducing the settlement to writing is a procedural, and not an essential, feature of an agreement. Signatures on a document are usually conclusive that an agreement has been reached, but a binding agreement does not necessarily depend on the presence of signatures. (OPSEU v. Ministry of Community and Social Services (Corbiere), [2013] O.G.S.B.A. No. 124 (Dissanayake)).

e. The party seeking to rely upon the agreement must establish its existence on the balance of probabilities, based on clear and cogent evidence of the words and conduct of the parties. (Canadian National Railway Co. v. UTU (Thomas), [2004] C.L.A.D. No. 233 (M. Picher); City of Hamilton v. ATU, Local 107 (Maracle), [2008] O.L.A.A. No. 564 (Luborsky); Re Architectural Mouldings Ltd.).

17The Employer argues that in the case at hand, these principles were met, and therefore, the parties reached a resolution via withdrawal, from which the Union and Grievor should now not be able to resile.

18The Employer asserts that during the January 11, 2024 mediation, the Parties went back and forth on a number of items, including the collective agreement articles that the Grievor was alleging were violated as reflected on the Grievance form, and the parties discussed information that was exchanged between the Grievor and management while she was on sick leave. It was only after the Union and the Grievor were satisfied that there had been no breach of the collective agreement or other Employer policies that the Union then communicated to the Employer and me that the grievance was withdrawn, and a withdrawal form would be sent to the Employer within the next couple of days.

19The Employer accepted the withdrawal with no conditions. Subsequently, I reported to the GSB that the grievance was withdrawn.

20Further, between January and March 2024, the Employer and Union counsel corresponded several times regarding the withdrawal of the Grievance. In these correspondences, it was clear that Union counsel was in discussions with the Grievor to obtain the signed withdrawal form. In its submissions, the Union indicated that the Grievor advised Union counsel on January 18, 2024 that she did not feel comfortable signing the withdrawal form, and that on January 30, 2024, the Grievor informed Union counsel that she would be recanting her decision to withdraw the Grievance. This, on its own, is indicative of the fact that the Grievor knew that she had already withdrawn her Grievance and was now attempting to resile from her withdrawal.

21In addition, the Employer asserts that based on correspondence that the parties exchanged, it's quite clear that there was no confusion on the Union's part that the Grievor had withdrawn her Grievance, and they were attempting to hold her to that.

22The Employer notes that the Grievor's decision to withdraw the grievance was clearly and unequivocally communicated to the Employer and was already accepted by the Employer on January 11, 2024. It is now too late for her to resile from this decision. The Grievor had the benefit of counsel prior to making the decision to withdraw.

23The fact that the Grievor now wishes to assert a different article of the Collective Agreement is not a legal argument to resile from the withdrawal. Permitting otherwise would be an abuse of process and have a chilling effect on labour relations. Short of incapacity, fraud, and/or misrepresentation – none of which are present here – the Grievor does not have a legal basis to resile from her withdrawal.

24In addition, while no formal withdrawal form was signed by the Grievor or issued to the Employer, this is not a necessary element for the withdrawal to be considered binding. As Arbitrator Lynk indicated in the OPSEU (Coelho) and Ministry of Children and Youth Services (2013) GSB 2011-2422 et al (Lynk) decision at para 33, page 14:

The parties can be bound by oral commitments, as long as the evidence demonstrates that they have unconditionally agreed to settle the substantive issues between them (City of Toronto v. Toronto Civic Employees Union, Local 416 (Lewis), [2002] O.L.A.A. No. 531 (Luborsky)). Reducing the settlement to writing is a procedural, and not an essential, feature of an agreement. Signatures on a document are usually conclusive that an agreement has been reached, but a binding agreement does not necessarily depend on the presence of signatures. (OPSEU v. Ministry of Community and Social Services (Corbiere), [2013] O.G.S.B.A. No. 124 (Dissanayake)).

25Accordingly, the Employer argues that in this case the withdrawal form is not a necessary component of the withdrawal, but a procedural formality. It is simply a confirmation of the withdrawal.

26This legal principle was similarly reiterated in the Sudbury (District) Roman Catholic Separate School Board v. OECTA, 1997 CanLII 25036 (ON LA), 1997 CarswellOnt 6155 (Kaplan, Knott, Bray) decision, where, further to an agreement in principle that was reached during collective bargaining negotiations, the Ontario English Catholic Teachers Association verbally indicated that three outstanding grievances would be withdrawn, and the Association would issue a letter to that effect the following week. Later, the Association took the position that the grievances had not been withdrawn. The three grievances then proceeded to a hearing, where the Employer raised a preliminary objection that the grievances had been withdrawn. The board of arbitration Arbitrators (Kaplan, Knott, and Bray) upheld the Employer's preliminary objection and dismissed the grievances. In doing so, they wrote on page 229:

As the authorities make abundantly clear, giving effect to settlements reached between the parties is of paramount importance in labour relations. In the normal course of events, settlements should be written. That is the usual practice of these parties, and it is unfortunate, albeit understandable given the circumstances, that usual practices were not followed. That being said, a settlement need not be written; where the facts indicate that a matter was resolved, it is open to a board of arbitration to so find absent any written agreement, as we do in this case. What is important is to determine whether a settlement has been reached and then, given the tremendous importance of settlements in labour relations, to give any such settlement appropriate effect. 26. This was further reiterated in the Ontario Public Service Employees Union (Holder-Regis) v Ontario (Attorney General), 2020 CanLII 97346 (ON GSB) (Anderson) decision, wherein Arbitrator Anderson also found that the Union was bound by oral agreements made in reference to a memorandum of settlement, despite the settlement not being signed.

27In reply submissions the Union argues that the essential elements of an agreement have not been satisfied. In this regard the Union argues that in order for an agreement to be enforced, there must be a meeting of the minds which was not present at the mediation session. The Grievor did not realize at the time of withdrawal that additional arguments could have been made to support her case, such as reliance upon Article 45.1 of the Collective Agreement.

28The Union argues that the Grievor's consent is an essential component in the particular system of carriage rights applied in the OPSEU-OPS relationship. As the Grievor has not signed the withdrawal form, there is no agreement. The Union relies on Arbitrator Lynk's GSB award in Coelho.

Decision

29The principles relied on by the GSB to hold parties to their decisions made in the grievance and arbitration process are well established. As Arbitrator Lynk stated in the OPSEU (Coelho) and Ministry of Children and Youth Services (2013) GSB 2011-2422 et al (Lynk) decision, at para 31, page 13:

Many times more grievances are filed in the unionized Canadian workplace than the arbitration process could ever hope to adjudicate through litigation. Accordingly, reality demands, with the full encouragement of the law, that the parties find productive ways of managing differences and disagreements. Ensuring the sanctity of an agreement is one significant feature of this legal encouragement. If employer and unions could easily repudiate their agreements with each other, especially after one party subsequently develops buyer's remorse, then the elaborate industrial relations machinery that mixes legality, flexibility, durability, informality, compromise, mutual interest, workplace rights and trust would quickly clog with sand.

Although Arbitrator Lynk's holding was primarily focused on settlements, it is apparent that the same principles are generally applied to the withdrawal of grievances. In this regard, the facts before the board of arbitration in Sudbury (District) Roman Catholic Separate School Board v. OECTA, are similar to those before me. There the union verbally indicated that it was withdrawing grievances and then (presumably) changed its mind. The board of arbitration found that the union's withdrawal decision was binding, and those grievances could not be litigated.

30The starting point of my analysis is to determine whether the grievance was in fact withdrawn. In my view it was. There is no dispute that the mediation was unsuccessful in resolving the grievance and that at the conclusion of it counsel for the Union advised that the Grievor would withdraw the grievance. All parties understood what that meant; that the grievance was withdrawn and therefore finished. The Union has not disputed that at the mediation day, the Grievor agreed to withdraw this grievance and did so.

31The Grievor was required by Union practice to fill out an internal form, but that was a formality. In accordance with my understanding of the Union's advice, I advised the GSB that the grievance was withdrawn. The Union advises in its submissions that the Grievor had advised counsel "that she would be recanting her decision to withdraw the Grievance." The implication of statement is that the Grievor changed her mind about withdrawing the grievance.

32In its reply submissions the Union argues that there is no "agreement" because the Grievor has not signed the withdrawal form. In my view, the Grievor's decision to withdraw the grievance was a unilateral one that did not require the Employer's consent. Even if that was not the case, it is obvious that the Employer in fact did agree with the Grievor/Union's decision to withdraw. As the decision in the Sudbury School Board case makes clear, it is not necessary for an agreement to be in writing- "where the facts indicate that a matter was resolved, it is open to a board of arbitration to so find absent any written agreement…". That is what occurred here. The parties and the Grievor, were in agreement that the grievance would be withdrawn. There was, contrary to the Union's submission, a meeting of the minds. That agreement stands even in the absence of the grievance withdrawal form.

33I understand that the Grievor now wishes to have the Board consider additional arguments that were not made at the mediation. It may be unfortunate if those arguments were not raised during mediation. However, it is too late to raise them now, after the grievance has been withdrawn.

34For all of the foregoing reasons I am satisfied that the grievance was withdrawn and is now concluded.