Ontario Public Service Employees Union (Alvi) v. The Crown in Right of Ontario (Ministry of Children, Community and Social Services), 2024 CanLII 129642

GSB# 2024-01642

UNION# 2024-0290-0034

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Alvi)

Union

• and -

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

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Alex Andrews Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Karen Martin Treasury Board Secretariat Employee Relations Branch Employee Relations Advisor

HEARING

November 27, 2024

Decision

1The parties have agreed to an expedited mediation-arbitration process to resolve grievances at the Roy McMurtry Youth Centre (“RMYC”) in Brampton. Although a formal protocol has not been finalized, the parties have agreed to attempt to settle matters at mediation and, if mediation is not successful, to refer appropriate cases to expedited arbitration. The parties specifically agree that the arbitrator can hear the matter under Article 22.16 of the Collective Agreement. This decision is issued in accordance with Article 22.16 of the Collective Agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons.

2Qasim Alvi is a Fixed Term Youth Services Officer at the RMYC where he has been employed since August 2021. On January 25, 2024 Mr. Alvi filed a grievance claiming that the Employer had violated Articles 2 and 5.3 of the Collective Agreement. By way of remedy, the grievor wants the Employer to match his pension contributions, including for him to buy-back pension credits, and to pay interest associated with the buy-back.

3There is no dispute that the grievor completed the OP Trust Membership Enrolment form on August 19, 2021, at the time he was hired. The form states that it was scanned and sent on by the Employer on August 20, 2021. This RMYC record shows that it submitted Mr. Alvi’s form to Ontario Shared Services (“OSS”), the provincial payroll services department, for processing. It appears that OSS never submitted the grievor’s OP Trust Membership Enrolment form to the OP Trust. As a result, neither Mr. Alvi nor the Employer made any pension contributions on the grievor’s behalf until recently, when the grievor realized that he had not been enrolled in the pension plan and pursued the matter.

4At the time of his hire, Mr. Alvi was 24 years old. It appears that he did not notice on his pay stubs that there was no reference to pension contributions being deducted, other than for the Canada Pension Plan. Only those deductions that are being made are listed on a pay stub, not all possible other deductions that could be made but were not. He apparently also didn’t notice that the only money coming off his pay cheque was for the basic statutory deductions and for Union dues.

5Although the grievor completes his own income tax returns, when Mr. Alvi received his first T4 from the Employer in early 2022 for the 2021 year, he did not notice that there was nothing in the box on the T4 that shows Registered Pension Plan (“RPP”) Contributions. Thereafter, for the 2022 year he similarly never noticed that there was nothing to show that he had made RPP Contributions.

6In early 2024, in the course of a conversation with some colleagues, the grievor learned that one could access the OP Trust portal to see what pension payments one would receive if one wanted to retire. When he tried to do that, he found that he had no access. Thereafter, upon further investigation, he learned that he was not enrolled in the OP Trust, so had not been making any contributions to the pension plan.

7The grievor pursued the matter with OSS and was advised on January 24, 2024 that the Employer would start making the pension deductions as of his February 2024 pay. Mr. Alvi was provided with forms to advise the OP Trust that he wanted to buy back the pension for the time he had missed, which forms he completed and submitted through OSS.

8In June 2024 the OP Trust advised Mr. Alvi that the buyback cost for the 2.34 years was $18,217.25, and that his employer had agreed that it would match his contributions. The grievor was also advised that he could either pay the amount in full or could choose from among ten financing options, which ranged from paying the buy-back over one to ten years, in which case interest would also be payable.

9Mr. Alvi chose ten years, the longest possible time to pay for the buy-back, which resulted in interest of $3,400.35 along with the $18,217.25 owing. He wants the Employer to pay the full amount of the interest.

10The Union argues the grievor was a young person who did not know what to look for on his paycheque, and that the Employer had not explained how to read a paycheque to him during his orientation. It further argues that it was the Employer’s fault that the grievor was not enrolled in the pension plan at the time of his hire despite his having expressed his interest in being enrolled. Finally, it asserts that the grievor is well within his right to choose the longest time to pay for the buy-back, and that even though he chose ten years, the Employer should have to shoulder the cost of financing that choice.

11The Union relied on Hlewka v. Moosomin Education, 2007 SKPC 144 (Prov. Ct. of Sask., Civil Div.) and Boyer v. Callidus, 2024 ONSC 20 (Ont. Sup. Ct. of Justice) in support of its position.

12In Hlewka the Court was addressing a constructive dismissal claim in which the employer was also alleged to have failed to make pension plan contributions for the complainant. The Court dismissed the constructive dismissal claim but ordered the employer to pay to the complainant the amount of pension plan contributions that it should have made, plus pre-judgement interest pursuant to Saskatchewan’s Prejudgment Interest Act.

13The Boyer decision is also about a constructive dismissal claim, which included a claim for damages for unpaid vacation, bonuses, and stock options. While the Court dismissed the constructive dismissal claim, it awarded the grievor damages for unpaid vacation, bonuses, and stock options, because it found that the terms of the relevant policies had not been clearly communicated to the complainant.

14Neither decision is of much assistance to me in this instance as they do not address the type of situation here. Firstly, there is no dispute that OSS made an honest mistake in failing to submit the grievor’s OP Trust enrollment form to the pension provider. Furthermore, the Employer in this instance has already advised the OP Trust that it will pay all of its portion of the pension contributions for Mr. Alvi for the 2.34 years buy-back period if the grievor pays his share of the pension contributions.

15The Employer concedes that there was a mistake made at the time of the grievor’s hiring when his OP Trust enrollment form was not submitted by OSS to the pension plan administrators, with the result that no deductions were made from the grievor’s paycheques for over two years. However, it asserts that Mr. Alvi’s grievance is extremely untimely as he should have flagged the issue to the Employer much earlier. It contends that even if he did not realize the problem from his pay cheques, which showed no deductions for the pension plan, he should have realized when he received his first T4 in February 2022. The Employer claims that it has been extremely prejudiced by liability now for the base amount of the buy-back it too has to pay into the pension plan. It also points out that the grievor is not mitigating appropriately as he has chosen the longest possible time to pay the buy-back, which requires financing over a ten-year period. It asserts that Mr. Alvi should be responsible for all of the financing costs.

16Having considered the facts before me I cannot accept that the grievor, who was a 24 year old in 2021 was so young that he did not know how to read a paycheque or a T4. There is no suggestion that this was the grievor’s first job. Furthermore, since the grievor was capable of preparing his own income tax returns, he should have noticed in 2022 and 2023 that it appeared that he had made no pension plan contributions since he had started at RMYC. In the two and a quarter years before he started making pension plan contributions in 2024, Mr. Alvi had the use of all of the money that would otherwise have been deducted from his bi-weekly paycheques. For his own reasons, he has chosen the longest possible time of ten years to pay back what he should have been paying every two weeks for 2.34 years.

17There is no doubt that the Employer breached its obligation to the grievor to ensure that he was enrolled in the pension plan when Mr. Alvi had indicated his wish to pay into the pension plan. It is therefore clear that it must pay its’ accrued pension contributions for this employee. However, it is entirely the grievor’s decision to take 10 years to pay back his portion of the accrued pension contributions, and he must bear some of the burden of that decision.

18Having considered the facts and arguments before me, I direct the Employer to pay half of the $3,400.35 in interest costs that the grievor will have to pay for the ten-year financing of his OP Trust buy-back. The grievance is therefore upheld in part.