Ontario Public Service Employees Union (Kaplanis) v. The Crown in Right of Ontario (The Ministry of Public and Business Service Delivery and Procurement), 2024 CanLII 129656

GSB# 2021-2087

UNION# 2021-0706-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kaplanis)

Union

• and -

The Crown in Right of Ontario (The Ministry of Public and Business Service Delivery and Procurement)

Employer

BEFORE

Kim S. Bernhardt Arbitrator

FOR THE UNION

Catherine Fan Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 28, October 6, 2022; March 24, 29, July 5, November 24, 2023; January 15, April 15 and June 18, 2024

Decision

INTRODUCTION

1. The grievance alleges that the Grievor was discriminated against as she was not credited for the continuous accrual of vacation credits for all periods that she was on Long Term Income Protection (LTIP), and was thus denied the opportunity to request a carry-over of such credits, and to have forfeited vacation credits that are granted to those on paid leaves of absence (LOAs).

2. The Employer denies that the Grievor was discriminated against as they maintain that she was not entitled to accumulate vacation credits while on LTIP. The Employer also raised three preliminary issues, which I ruled would be determined at the conclusion of the entire hearing as a part of this decision. The Employer’s preliminary objections were that 1.) that the grievance was untimely; 2.) there was no prima facie issue to be determined; and 3.) that this arbitration board did not have the jurisdiction to deal with the grievance due to the grievance being untimely. The Union responded to the timeliness objection with the argument that the Employer had waived its right to raise the objection.

3. For the reasons described below, the grievance was untimely, the Employer had not waived its right to object, and as a result I lack the jurisdiction to determine the case.

FACTUAL BACKGROUND

4. The parties provided the following Agreed Statement of Facts (ASF), inclusive of the documents referred to within the ASF, as evidence. Additional evidence was provided through the Grievor’s testimony, further documentary evidence, and substantive oral and written submissions that the parties provided. I am grateful for the counsel’s thoroughness and proficiency in the presentation of their positions.

5. The ASF is as follows:

GSB #2021-2087

OPSEU #2021-0706-0002

IN THE MATTER OF AN ARBITRATION BEFORE THE GRIEVANCE SETTLEMENT BOARD

BETWEEN:

MINISTRY OF GOVERNMENT AND CONSUMER SERVICES

(“the Employer/Ministry”)

And

ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 706

(“the Union/OPSEU”)

And

DONNA KAPLANIS

(“the Grievor”)

AGREED STATEMENT OF FACTS

The Employer and the Union (hereinafter “the Parties”) agree to the following facts for the purposes of the hearing of the above-noted matter and without prejudice or precedent to other grievances and/or hearings. The Parties agree that additional information may be presented at the hearing by viva voce evidence.

A. The Grievor

1. Donna Kaplanis (the “Grievor”) is a Pay & Benefits Specialist in the Pay and Benefits Operations Branch of the Ministry of Government and Consumer Services.

2. The Grievor is a member of OPSEU/SEFPO Local 706. This Grievance is governed by the Collective Agreement attached at Tab “1”.

3. The Grievor’s Continuous Service Date is May 16, 1988.

4. The Grievor is currently on Long-Term Income Protection (LTIP).

B. Relevant Collective Agreement Provisions:

6. Long-Term Income Protection (“LTIP”) is governed by Article 42, of the applicable Collective Agreement, which provides, in part, as follows:

42.2.3 The L.T.I.P. benefits commence after a qualification period of six (6) months from the date the employee becomes totally disabled, unless the employee elects to continue to use accumulated attendance credits on a day to-day basis after the six (6) month period. Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured employee to perform the essential duties of his or her normal occupation during the qualification period, and during the first twenty-four (24) months of the benefit period; and thereafter during the balance of the benefit period, the inability of the employee to perform the essential duties of any gainful occupation for which he or she is reasonably fitted by education, training or experience.

42.7.1 Rehabilitative plans and programs for employees receiving L.T.I.P benefits, whether with the OPS or another Employer, shall be required where recommended by the Carrier.

“Rehabilitative employment” is a rehabilitative plan or program and means remunerative employment while not yet fully recovered, following directly after the period of total disability for which benefits were received. When considering rehabilitative plans and programs, L.T.I.P. will take into account the employee’s training, education and experience. If a person does not participate or cooperate in a rehabilitation plan or program that has been recommended or approved by the Carrier, the employee will no longer be entitled to benefits. If an employee who is in receipt of L.T.I.P. benefits is resuming employment on a gradual basis during recovery, partial benefits shall be continued during rehabilitative employment. The rehabilitative benefit will be the monthly L.T.I.P. benefit less fifty percent (50%) of rehabilitative employment earnings. The benefit will continue during the rehabilitative employment period up to but not more than twenty-four (24) months.

42.7.2 Where a person does not participate or cooperate in a rehabilitation plan or program that has been recommended or approved by the Carrier and the employee is no longer entitled to benefits, the employee will have the ability to file for an expedited review of the decision to end benefits directly to the 99 Claims Review Subcommittee under Appendix 4 (Joint Insurance Benefits Review Committee) within 30 days of the decision to end benefits. The parties agree that such matters will be heard within 60 days by the Claims Review Subcommittee as per paragraph 6 (a) of Appendix 4, unless the parties mutually agree otherwise.

42.8 The L.T.I.P. benefits under rehabilitative employment shall be reduced when an employee’s total earnings exceed one hundred percent (100%) of his or her earnings as at the date of commencement of total disability.

42.9 Employees while on rehabilitative employment with the Ontario Government will earn vacation credits as set out in Article 46 (Vacations and Vacation Credits).

7. Vacation entitlements are governed by Article 46 of the applicable Collective Agreement, which provides, in relevant part, as follows:

46.1 Effective January 1, 1992, an employee shall earn vacation credits at the following rates:

(a) One and one-quarter (1¼) days per month during the first eight (8) years of continuous service;

(b) One and two-thirds (1 2/3) days per month after eight (8) years of continuous service;

(c) Two and one-twelfth (2 1/12) days per month after fifteen (15) years of continuous service;

(d) Two and one-half (2½) days per month after twenty-six (26) years of continuous service.

46.2 An employee is entitled to vacation credits under Article 46.1 in respect of a month or part thereof in which he or she is at work or on leave with pay.

46.3 An employee is not entitled to vacation credits under Article 46.1 in respect of a whole month in which he or she is absent from duty for any reason other than vacation leave of absence or leave of absence with pay.

46.4 An employee shall be credited with his or her vacation for a calendar year at the commencement of each calendar year.

46.5 An employee may accumulate vacation to a maximum of twice his or her annual accrual but shall be required to reduce his or her accumulation to a maximum of one (1) year’s accrual by December 31 of each year.

46.11 An employee who has completed six (6) or more months of continuous service shall be paid for any earned and unused vacation standing to his or her credit at the date he or she ceases to be an employee, or at the date he or she qualifies for payments under the Long Term Income Protection plan as defined under Article 42, and any salary paid for unearned vacation used up to that time shall be recovered by the Employer from any monies owing to that employee.

C. The Grievor’s LTIP leave

8. The Grievor has been on leave since January 2018 because of health conditions that have impaired her ability to perform her duties at work.

9. The Grievor was approved to receive Long Term Income Protection (“LTIP benefits”) on February 28, 2019, effective on or about August 23, 2018.

10. The LTIP Plan provides a monthly benefit of 66 and 2/3 per cent of an employees’ gross monthly salary once they are totally disabled as determined by the Insurance Carrier. To qualify for LTIP benefits, an employee must provide medical proof acceptable to the Insurance Carrier that they were: (a) totally disabled continuously for the 6 months qualifying period, and (b) receiving treatment since the day they stopped working (c) under regular care and treatment of a physician.

11. Manulife is the current LTIP Insurance Carrier.

12. On or about August 21, 2018, the Grievor exhausted her short-term sickness leave. Because the Grievor was not initially approved to receive LTIP benefits in August 2018, the Grievor elected to use her vacation credits to remain on payroll from August 23, 2018 to September 7, 2018, after which she remained away from work on an unpaid leave of absence.

13. When the Grievor was approved for LTIP benefits, the Grievor’s outstanding vacation credits were dealt with consistent with the terms of Article 46.11 of the Collective Agreement, reversing the previous use of vacation credits for the period of August 23, 2018 to September 7, 2018. (see Exhibit 4 – Reconciliation Email and Report)

14. The Grievor has been totally disabled and in continuous receipt of LTIP benefits since August 23, 2018.

D. Vacation accrual during the Grievor’s LTIP leave

15. While she has been on LTIP, the Grievor was never provided with a quarterly statement of any vacation credits.

16. On September 21, 2021, the Grievor asked a Pay and Benefits Advisor to confirm her outstanding vacation credit balance. On September 22, 2021, the Grievor was advised by the Pay and Benefits Advisor that she does not accrue any vacation credits while on LTIP. A copy of the Grievor’s exchange with the Pay and Benefits Advisor is attached at Tab 2.

E. The Grievance

17. The Union filed a grievance on October 18, 2021 alleging that the Employer had violated (among other things) the Collective Agreement, the Human Rights Code, and the Employment Standards Act, 2000 by failing to credit the Grievor with vacation credits “for all periods while [she] ha[d] been on Long Term Income Protection (LTIP)” (the “Grievance”). A copy of the Grievance Form is attached at Tab “3”.

18. On November 18, 2021, the Employer held a Formal Resolution Stage meeting in accordance with Art. 22.3 of the Collective Agreement. Attached at Tab “4” is a copy of the Employer’s notes of the Formal Resolution Stage meeting.

19. By letter dated November 29, 2021, the Employer denied the Grievance. The Employer representative advised that “[u]pon review of all the information provided and the terms and conditions as set out in the Collective Agreement, I find no violation of the Collective Agreement. Accordingly, your grievance is denied.” A copy of the Formal Resolution Stage letter is attached at Tab “5”.

20. The Grievance was referred to the GSB on or about December 2[sic], 2021 and set down to be heard on June 28, 2022 through the Joint File Review process.

21. On February 17, 2022, counsel to the Employer requested that the Union provide particulars as to the substance and nature of the Grievance and advised that the Employer “reserve[d] its right … to raise any preliminary objections that may be warranted” upon receipt of the particulars. A copy of the Employer’s request is attached at Tab “6”.

22. On June 22, 2022, the Union provided particulars on a without prejudice basis.

23. On June 28, 2022, the Parties attended a hearing before Arbitrator Bernhardt, which was used for mediation by agreement of the parties. The Parties did not settle and agreed to set additional dates for the hearing of the Grievance and to exchange additional production and particulars.

24. On August 9, 2022, counsel for the Employer responded to the Union’s email dated August 2, 2022, and indicated that the Employer intended to make a number of preliminary objections, including that the GSB did not have jurisdiction to deal with the Grievance on the grounds that the Grievance was untimely. A copy of the email is attached at Tab “7”.

25. On October 6, 2022 the parties met again at the Board for a case management. At that case management attendance counsel discussed the Union’s position on the merits of the case and the Employer’s preliminary positions

26. On October 7, 2022 the Board wrote to Counsel confirming the parties agreed to schedule two further dates for the matter.

ALL OF WHICH IS SUBMITTED THIS 5^TH DAY OF JULY, 2023

Jordanna Lewis for the Employer

Catherine Fan for the Union

PRELIMINARY ISSUES

Employer’s Objections and Argument

A. The grievance is untimely.

27. It is the Employer’s position that the grievance falls outside of Article 22.2 of the C/A 30-day time limit for filing the grievance as the Grievor knew or ought to reasonably have known that she was not accumulating vacation credits as soon as she went on LTIP on August 23, 2018. As a result, the Employer argues that the grievance should have been filed no later than September 23, 2018 (or 24, adjusting for the Labour Day holiday). The Employer further submits that this delay violates Article 22.1 of the C/A’s stated intent for the parties to resolve the dispute “as quickly as possible”.

28. Instead of adhering to these timelines, as agreed to in the ASF, the Employer notes that the grievance was filed on October 18, 2021, three years and two months after the Grievor was on LTIP and stopped accumulating any vacation credits.

29. It is also observed by the Employer that the ASF confirms that the Grievor’s outstanding vacation credits were paid out upon her receipt of LTIP, consistent with Article 46.11 of the C/A, as she was paid out for any vacation credits that she accrued, and she has not accrued any vacation credits since she has been permanently disabled and has been in receipt of LTIP ( August 2018).

30. As evidence to prove this point, the Employer refers to the four-year period prior to the start of this arbitration (2018 to 2023), when the Grievor was neither credited with vacation, nor was she in receipt of any quarterly statements of any vacation credits. The Employer also asserts that the documentation shows that once her LTIP was approved, the Grievor was notified that her vacation credits were paid out. The Ministry further submits that as a Pay & Benefits Specialist the Grievor would be well-aware of the fact that she would not accumulate vacation credits once she was in receipt of LTIP.

31. It is the Employer’s contention that the Grievor’s “triggering event” was when the Grievor knew that she was on LTIP as of August 23, 2018, paid out for all of her benefits as of that point (including vacation), and thus knew that she was not eligible to collect vacation credits as of that point in time.

32. The Ministry also opposes the Union’s request that should it be found that the grievance was untimely, that I should exercise my discretion under section 48.16 of the LRA to extend the timeline as there are no reasonable grounds for the extension and that the Ministry would be substantially prejudiced by such an extension.

33. In exercising the arbitral discretion to extend time limits there are six factors to consider in determining whether there were reasonable grounds for the delay, and the Employer cites these factors as being summarized in the OPSEU (Liantzakis) v MCSCS GSB #2012-3997 [Liantzakis] (2014) (Tims) decision, which refers to the arbitral decisions in Becker Milk and Greater Niagara General Hospital as sources for these factors. In deciding whether there are reasonable grounds to exercise their discretion under section 48.16 of the LRA, the Employer asserts that a Board must consider:

i. The nature of the grievance;

ii. If the delay occurred when the grievance was initially launched;

iii. Whether the grievor was responsible for the delay;

iv. The reason for the delay;

v. The length of the delay; and

vi. Whether the Employer can reasonably assume that the grievance had been abandoned.

The Employer argues that taking all six factors into account there were no reasonable grounds for the delay in this case, and that the Board should not exercise its discretion to expand the time limits. The “reasonableness” of the delay should also be viewed in light of the parties’ intention, expressed in Article 22.1 of the C/A, that acknowledges that timeliness is important to the parties in the processing of grievances.

Nature of the Grievance

34. According to the Employer, the grievance was based on a distinct event, the lack of accrual of vacation time while on LTIP, which began occurring on August 23, 2018, and the Grievor’s benefits were paid out as of that date. While the grievance cites that this was discriminatory and a Code breach which gives a degree of seriousness to the allegations, it is not a case where there are serious consequences such as a termination or suspension. The Employer argues that the GSB’s case law demonstrates that such a delay would not be justified by the Grievor’s claim for vacation accrual when she was no longer on the Ministry’s payroll.

35. The Ministry disagrees with the Union’s suggestion that this could be considered as a continuing grievance as it was not the case that the Grievor needed to wait for a pattern to crystallize, and there was no aspect of the alleged discrimination that could properly lead to this situation being described as a continuing grievance. The Employer argued that the GSB’s jurisprudence is “clear” that it is not whether there is a continuing effect, but it is more appropriate to look at the last incident that could bring about a claim of discrimination. In support of this contention the Employer cited Vice-Chair Briggs’ decision in OPSEU (LaChance) v MCSCS [Lachance] 2017 CanLII 30326 where she cites a number of cases with approval, in making her determination that in order to be a grievance of a continuing nature it is the last incident that is the triggering event for filing a grievance.

36. In the Employer’s view, even if the nature of the grievance was serious, it was only one factor amongst others to be considered.

If the Delay Occurred when the Grievance was Initially Launched

37. The Employer’s position is that there was a significant delay at the initial stage of the grievance process which fell between the event that was eventually grieved – the August 23, 2018 loss of vacation accumulation – and the filing of the grievance on October 18, 2021. In the alternative, as the Grievor qualified for LTIP as being totally disabled from performing the duties of any position on August 23, 2020, the Employer asserts that this would have been the latest date when the Grievor should have reasonably “figured out” that she was not accruing vacation while she was in receipt of LTIP. In the Employer’s alternative view, the latest the grievance should have been filed would have been September 23, 2020, however, no grievance was filed on that date either; rather the grievance was filed on October 18, 2021, over a year later than this alternative date. In the Employer’s opinion, the Grievor, while filing an individual grievance, should not be permitted to sit and wait to accumulate more of what is being claimed after the issue has crystallized.

38. The Employer reserved their right to provide any submissions until after the Union’s submissions regarding the reason for the delay and whether the Grievor was responsible for the delay.

Could the Employer reasonably assume that the Matter had been Abandoned?

39. The Employer argues that it was reasonable for them to assume that the grievance had been abandoned as there was no indication for over two years that the Grievor was unhappy with her vacation entitlement, even when she had been off of the payroll and on LTIP. Under Article 22.14.1 of the C/A the Employer asserts that when a grievance is not pursued within the time limits it is deemed to have been withdrawn. As a result, given the length of the delay and the lack of any effort to complain, the Employer was left to believe that there was no problem.

Would the Employer be prejudiced if the time limits were extended?

40. The Employer argues that under section 48.16 of the LRA, if it was found that there were no reasonable grounds to extend the time limits, there was no need to consider whether they had experienced prejudice due to the delay as the existence of either of these two factors would be sufficient to deny the extension.

Alternatively, the Employer’s position is that they were also prejudiced in this case due to the delay as the prejudice could be subtle, and could be assumed given the years of delay that occurred. In support of these propositions, the Employer cites Arbitrator Gray’s comments in OPSEU (Gamble) v LCBO [Gamble] GSB# 1996-1635 that prejudice could arise from the impact of the delay upon the quality of the evidence. The Employer also cites Arbitrator Tims’ comments in Liantzakis as support for their argument that prejudice can be assumed when there have been years of delay, such as in the present case. The Ministry observed that arbitrators have found shorter lengths of delay (such as three months) to be substantial – as Arbitrator Gray did in OPSEU (Smith et al) v MCSS [Smith] GSB #2017-0553. Arbitrator Gray’s decision in Smith was also cited by the Employer for the proposition that the absence of prejudice was not a reason for an arbitrator to exercise their discretion to extend time limits.

41. In summary, the Employer argued that the grievance was untimely, and by taking all of the factors into consideration, it would not be reasonable to extend the time limits.

Union’s Argument regarding the timeliness of the grievance

42. It is the Union’s position that the Employer waived its right to object to the timeliness of the grievance as no issue was raised by the Employer until 10 months after the grievance was filed (prior to Employer counsel’s involvement), which was after the resolution stage of the grievance procedure, and one-and one-half months after the start of the hearing. As a result, in the Union’s view, it is unnecessary to deal with the Employer’s objection.

43. The Union argued that in the alternative, the date that the Grievor became aware that her vacation credits were not accumulating occurred when she received the Employer’s September 22, 2021 response to her September 21, 2021 inquiry, which stated that she does not accrue any vacations credits while on LTIP. The Union asserts that this was the date of the Grievor’s knowledge that she had a concern and that she and the Union responded promptly by filing the grievance on October 18, 2021 (within the 30-day time limit). The Union also raised a further alternative argument, that the grievance was continuing in nature.

44. The Union asserts that the general principles of waiver, as established by the GSB’s jurisprudence, recognize that a party can waive its right to insist upon its procedural rights under the C/A by its conduct, such as the right to insist upon the timelines. It is an objective test that does not depend upon the party’s subjective thoughts. The waiver need not be explicit, but can be inferred by the party’s conduct, such as by taking a fresh step in the process (such as participating in subsequent steps of the grievance procedure or in the referral of the grievance to arbitration) prior to raising the objection. Once the timeliness objection has been waived it cannot be revived.

45. The Union cites the following decisions as supporting these principles:

Jackson - Ontario Public Service Employees Union v Ontario (Children, Community and Social Services) [Jackson], 2020 CanLII 74277 (ON GSB) (Banks); Amalgamated Transit Union - Local 1587 v Ontario (Metrolinx - GO Transit) [Metrolinx], 2012 CanLII 29890 (ON GSB) (Dissanayake); Fung and Anand - Re Ministry of Revenue & OPSEU [Fung and Anand], GSB#1989-1798 (1991) (Stewart); McClelland - Ontario Public Service Employees Union v Ontario (Community Safety and Correctional Services) [McClelland], 2013 CanLII 42611 (ON GSB) (Briggs); Curtis - Ontario Public Service Employees Union v Ontario (Attorney General) [Curtis], 2020 CanLII 14812 (ON GSB) (Petryshen); and Sagiuliano - Ontario Public Service Employees Union v Ontario (Community Safety and Correctional Services) [Sagiuliano], 2014 CanLII 20596 (ON GSB) (Briggs).

46. The Union argues that under C/A article 22, the Employer should have raised any timeliness objection at the first opportunity to do so, which was the November 18, 2021 Formal Resolution Stage meeting, but that they failed to do so. As Vice-Chair Briggs found in McClelland, this Employer discussed the merits of the grievance, yet did not make any mention that the grievance was out of time.

47. In applying these principles to the circumstances of this case, as outlined in the ASF, the Union observes that the grievance was filed within 30 days of the Grievor receiving notice of her vacation balance and the lack of accrual of vacation credits while on LTIP – on October 18, 2021. According to the Union the Employer took a number of fresh steps in the grievance/arbitration process, which provided objective evidence that they did not intend to insist upon the C/A timeframes. These steps included the Employer’s participation in a Formal Resolution Stage (Step 2) meeting on November 18, 2021; the November 29, 2021 letter from the Employer denying the grievance; the matter being referred to the GSB on December 3, 2021, and the scheduling of the first hearing date for June 28, 2022. The Union asserts that these actions demonstrate that the Employer was prepared to deal with the grievance on its merits.

48. The Union argues that according to the case law, these actions infer that the Employer did not intend to raise an objection about the timeliness of the grievance. According to the Union, Vice-Chair Briggs in McClelland found that the fact that the Step 2 meeting was held, and the merits were discussed, was sufficient to constitute a fresh step being taken by the Employer. Similarly, this Employer had to consider and raise a timeliness objection in their November 29, 2021 response denying the grievance, after the November 18, 2021 Step 2 meeting. In the Union’s view, it was clear that the Employer knew since the Step 2 meeting that the Grievor’s concern was the denial of vacation credits while she was on LTIP, and that was sufficient information for the Employer to consider any timeliness objection.

49. The Union refers to paragraph 13 of the ASF as evidence that the Employer’s November 29, 2021 letter contained no suggestion that the grievance was untimely as it advised that the denial was based on there being “no violation of the [C/A]”, with no suggestion of any existing timeliness objection, despite the fact that the Grievor had been on LTIP for four years by that point.

50. The Employer also participated in the next stage of the process without raising any objections, as the matter was referred to the GSB on December 3, 2021 and set down to be heard on June 28, 2022 through the Joint File Review process according to the Union. In support of its position the Union cites Arbitrator Petryshen’s comments in the Curtis decision that the employer’s participation in mediation and in scheduling processes constitute fresh steps and constitute a waiver of any procedural objection.

51. The Union anticipated that the Employer would respond that their letter of February 17, 2022 requesting particulars and reserving their right to raise any preliminary objections negates the suggestion that they waived their objection to the timeliness of the grievance. However, the Union argues, the letter came too late as the opportunity to object had already been waived, and could not be unwaived. In support of this contention the Union refers to Arbitrator Stewart’s comments in Fung and Anand that once fresh steps are taken to proceed with the grievance, without a timeliness objection being raised despite the Employer’s awareness of the substance of the grievance, the waiver cannot be reversed.

52. The Union also argues that the Employer’s February 17, 2022 letter was a “boiler plate” request for particulars and did not provide any specific notice of a preliminary timeliness objection, just a general notice that they “reserved [their right…] to raise any preliminary objections”, as referred to in paragraph 19 of the ASF. The Union relies on Vice-Chair Briggs’ statement in Sagiuliano, as support for their contention that such a general statement of the possibility of some unidentified preliminary objections did not provide the Union with the opportunity to assess whether it wished to continue with the litigation.

53. In the Union’s view, the Employer had many opportunities to raise a timeliness objection, beginning with the November 18, 2021 Stage 2 meeting, and failed to make any specific mention of a timeliness objection until August 9, 2022. The Employer’s August 9, 2022 email was when the Employer’s Counsel first specified that they would be raising a timeliness objection, according to the Union.

54. In summary, the Union argues that the Employer’s objection came too late, as it came 10 months after the grievance was filed, and the first suggestion of there being any objection was the February 2022 letter from the Employer’s Counsel, which did not specify if there would be any objections, nor did it mention that timeliness could be a potential objection. As a result, the Union argues that a four-month delay before there was any suggestion of an objection, and a ten-month delay until there was a specific mention of there being a preliminary objection due to timeliness is a waiver of the Employer’s right to object to the grievance.

Employer’s response to the Union’s waiver argument

55. The Employer argued that they had not waived their right to raise an objection that the grievance was untimely. In the alternative, the Employer submitted that the issue of waiver did not apply as the Joint Insurance Benefit Review Committee [JIBRC] has substantive jurisdiction over this complaint, and the Union cannot raise a waiver issue regarding the substantive jurisdiction of a matter.

56. If this Board finds that timeliness is a procedural matter, while considering the unique circumstances of this case, the Employer asserts that GSB jurisprudence has found that a timeliness objection has not been waived if an objection is not made at the time a grievance is referred to arbitration. In this situation, it is the Employer’s position that the clock did not start to run on their preliminary objection until the attempt to mediate the dispute on June 28, 2022 was unsuccessful.

57. In the Employer’s initial request for particulars on February 17, 2022 the Employer reserved its right to raise any preliminary objections upon receipt of the particulars. The particulars were provided by the Union on June 22, 2022, and in addition to the attempt to mediate the dispute at the first day of hearing on June 28, 2022, the parties agreed to set additional dates for the hearing and to exchange additional production and particulars, resulting in the Employer’s correspondence of August 9, 2022 specifying that they did intend to raise an objection regarding the timeliness of the grievance.

58. The Employer’s request to bifurcate the hearing so that the preliminary objections they had referred to could be heard and potentially dispose of the entire dispute was denied. The Employer raised their concern that they would be prejudiced as the case was being divorced from the discussions up to date regarding timeliness and the overall discretion of this Board.

59. In support of their contention that they had not waived their right to object by not raising the timeliness issue when the matter was referred to arbitration the Employer cites Vice-Chair Brigg’s decision in OPSEU (Ireland) v MCSCS [Ireland] 2011 CanLII 41861 (Briggs). In the Employer’s submission, the Ireland decision demonstrates that a material inquiry into the factual scenario and the true intention to waive a right to raise an objection is necessary to find that the right to object has been waived.

60. The necessity of considering the factual circumstances to determine whether there is a true intention to waive the right to raise a timeliness objection is also reflected in the Metrolinx decision by Arbitrator Dissanayake (referred to in the Union’s submissions) when he comments that it must be reasonable in all of the circumstances for the Union to assume that the Employer would not be objecting on the basis of timeliness. In the current situation, it is the Employer’s view that it was not until the June 28, 2022 mediation during which the parties agreed to exchange further particulars and production that the Employer was in a position to give notice of their position (through their correspondence of August 9, 2022) that the grievance had been filed outside of the time limits in the C/A. In these circumstances the Employer submits that they did not waive their rights as per the Metrolinx decision as it was not a reasonable assumption, given the circumstances, to conclude that they had no objection to the untimeliness of the grievance.

61. The Employer argues that similar to Arbitrator Anderson’s comments in the OPSEU (Bonacci) v MSG [Bonacci] 2021 CanLII 127108 case, the fact that in this case the true issue at stake did not become clear until much later in the process negates the premise that the right to object to an untimely grievance had been waived. The Employer asserts that in Bonacci the Board found that the lack of sufficient information on the face of the grievance negated the idea that the employer had waived their right to object, which Arbitrator Anderson found to be distinct, but not inconsistent, from other decisions in which the events alleged in the grievances were identified to the employer by the union prior to any fresh step being taken. The Employer observes that some of these “non-parallel” decisions were ones cited by the Union, or referred to in the Union’s cited case law, in this hearing (Fung and Anand, Jackson, [OPSEU (Union) v. Ontario (Ministry of Community Safety and Correctional Services) [Herlich decision], cited in Metrolinx], 2005 CanLII 55200 (ON GSB)](https://www.minicounsel.ca/ogsb/2005/55200) (Herlich).

62. In the current case there was no time frame in the grievance about the start of or how long the Grievor’s claims had existed, as the only timing referenced in the grievance was “while I’ve been on LTIP”. Ambiguity was also raised, according to the Employer, by the Grievor’s citing C/A provisions 18 (seniority), 42 (LTIP), and 46 (vacation and vacation credits), along with other C/A articles, making it appear to the Employer that she had a dispute with the insurer, and not with the Ministry. The Employer further argued that as they had no authority over her claim and the Grievor was no longer on their payroll or involved in a rehabilitation claim, they were not in a position to determine if the grievance was timely until they received the June 22, 2022 particulars from the Union.

63. In the Employer’s view a decision that there was a waiver of their timeliness objection would not be appropriate if these circumstances were not considered, and failure to do so would lead to unfairness and be harmful to good labour relations, as referred to in some of the case law. Labour relations would be damaged if the parties were to cease efforts to resolve disputes, mediate, set dates, or take other measures to resolve a grievance if any such action is viewed as a fresh step and negating the ability to raise such an objection when it becomes evident.

Union’s reply to Employer’s waiver argument

64. The Union’s main response to the Employer’s argument, that their right to object had not been waived, is that once the timeliness objection has been waived, it cannot be retrieved, as outlined in the Fung and Anand decision, at page 11 as Arbitrator Stewart states “once a timeliness objection has been waived it cannot be revived by notice”.

65. The Union disputes the Employer’s claim that the parties agreed that the Employer could continue with a timeliness objection based upon the communications exchanged during mediation, case management discussions and directions, and communications between counsel. The Union disagrees that they misled the Employer by not raising their waiver argument at an earlier moment. In the Union’s view, the Employer did not specify that they were raising a preliminary objection to the timeliness of the grievance until the Employer’s communication of August 9, 2023. As a result, the Union states that it was not given the opportunity to respond to the Employer’s preliminary objection until they received the Employer’s August 9, 2024 correspondence.

ANALYSIS OF THE EMPLOYER’S TIMELINESS OBJECTION AND THE UNION’S WAIVER RESPONSE

66. I find that the grievance was untimely, and that the Employer did not waive their right to object to the untimeliness, so I lacked the jurisdiction to consider extending the timelines under the LRA. Given the length of the breach of the 30-day time limit in filing the grievance, I would not have extended the time limits in any case.

67. The grievance was untimely for the following reasons. The Grievor received LTIP effective August 23, 2018, and her LTIP was retroactively approved on February 28, 2019. As shown in the April 2, 2019 correspondence with the Pay Benefits Specialist, the Grievor received payout of her vacation credits (along with her other benefits), which was adjusted to account for the 10 vacation days that she was not entitled to between September and December 2018, due to her being in receipt of LTIP benefits during that period.

68. The Grievor’s correspondence with the payroll department during early 2019 showed her awareness of, and ability to address, concerns regarding her benefits and pay post her LTIP approval in February.

69. The Grievor’s role as a Pay and Benefits Specialist, dealt with inquiries regarding an employee’s benefits while on LTIP, and having knowledge of Ministry policies and the relevant C/A provisions, including Article 46.3 which states that “an employee is not entitled to vacation credits under Article 46.1 in respect of a whole month in which the employee is absent from duty for any reason other than vacation leave of absence or leave of absence with pay”. Without getting into the Union’s argument that LTIP benefits are a form of payment from the Employer, as that argument is not relevant to the preliminary matter of timeliness, it is clear that the Grievor’s job description would require her to have some familiarity with the Employer’s interpretation that vacation credits are not accumulated when an employee is on LTIP.

70. Even more specifically, the Management Board Cabinet Compensation Directive (revised January 27, 2014) expressly states, at Section 7, that:

“An employee is not entitled to vacation credits,

(a) in respect of a whole month in which he or she is on leave of absence without pay; and

(b) in respect of a whole month in which he or she receives benefits under the Long-Term Income Protection Plan. Emphasis added.

71. The Grievor did not receive any quarterly statement of any vacation credits, as she would have received prior to her receipt of LTIP, another indication that she was not accruing any further vacation credits since she started receiving LTIP in August 2018, and she did not inquire about her vacation credits until Sept 21, 2021.

72. Based upon these facts, I find that once the Grievor was retroactively approved for LTIP on February 28, 2019, or at the latest, during her correspondence with the Payroll & Benefits Services Division in April 2019, the Grievor “ought reasonably” to have known that she was not accumulating vacation credits while on LTIP and her grievance should have been filed within 30 days – at the latest by early June 2019. Instead, the grievance was not filed until Oct 18 2021, almost two and a half years after she reasonably “ought to have known” that she had a concern.

73. There was a lack of any clear explanation for the lengthy delay by the Grievor during her testimony. When questioned by Employer’s counsel during cross-examination about her knowledge of the payroll and benefits policies and C/A provisions the Grievor responded that she did not have them at “the top of my head” and that her position mainly required to follow “on-line procedures” and that it did not involve the full range of duties performed by the department, as for example, there was a specialist for LTIP and WSIB.

74. The evidence shows that it is much more likely than not that the Grievor either knew or “ought to have known” that she would not be accumulating vacation credits while she was on LTIP. Given the very lengthy time delay between when her awareness should have occurred (in April 2019 at the latest), without a reasonable explanation for the delay, the grievance is untimely.

75. The Employer did not waive their right to object to the untimeliness of the grievance, and no such waiver should be implied by the Employer’s actions after they received the October 18, 2021 grievance, which was the first time that the Employer knew of any concerns about the Grievor not accumulating vacation credits while on LTIP.

76. The purpose behind the doctrine of waiver is well expressed by Arbitrator Dissanayake in Metrolinx, at paragraphs 28 and 29:

There certainly is no evidence in the present case that the employer at any time advised the union that it was waiving time limits... However, it is trite to say that waiver need not necessarily be explicit. It may be inferred from conduct. Given the requirement of intent, the fact that the timeliness objection was formally raised for the first time on the eve of or even the day of arbitration does not necessarily lead to a finding of waiver. The objective evidence relating to the conduct of the parties must be examined to determine whether it reasonably leads to an inference of intent. The reasoning behind the doctrine of waiver is that it is unfair and prejudicial to allow a party to mislead the other party into believing that it is prepared to deal with a grievance despite its untimeliness, and then to rely on its strict rights to preclude the grievance from proceeding further. Therefore, it is not enough for an employer to state that it did not subjectively intend to forego its right to object. The test has to be objective, that is, was it reasonable for the union, in all of the circumstances, to conclude that the employer would not be objecting on the basis of time limits? If the employer had conducted itself in a manner as would reasonably lead to such a conclusion, then intention to waive time limits would be inferred…

Whether intention may reasonably be inferred obviously depends on the evidence in a given case. Emphasis added.

77. The Union cited the events in the Metrolinx decision, as well as other previously cited cases, to claim that the objective evidence of an employer taking fresh steps in the grievance arbitration process could establish that the employer did not intend to raise a procedural objection. In the current case, the Union presented the facts that the Employer had participated in the Step 2 meeting, sent the November 28, 2021 response to the grievance, agreed with the setting of dates for the arbitration, and participated in mediation discussions on the first day of hearing (June 28, 2022) as evidence that the Employer had waived their right to raise a timeliness objection.

78. I do not disagree with the general principle that the evidence needs to be more objective than just the employer’s subjective view that they had preserved their rights, and that evidence of fresh steps being taken in the grievance process might be one way, albeit a common way, to establish an employer’s intention to waive their preliminary objections. However, none of the cases suggested that the only way to objectively determine an employer’s intent was by determining that a fresh step had been taken.

79. In this case there were issues that required further clarification for the Employer to formalize its position on the grievance. There was no time frame in the grievance itself to establish when the alleged C/A breach occurred as the grievance only referred to “for all periods while I have been on [LTIP]”. The grievance also referred to C/A provisions (Articles 18 and 42) that implied that the case had something to do with the Grievor’s receipt of LTIP, or problems with her LTIP benefit. The Employer’s notes from the November 18, 2021 meeting clarify that the grievance was about the entire period of the Grievor’s receipt of LTIP, when that period started, and that it involved the lack of accumulation of vacation credits while she was on LTIP. The Employer’s November 28, 2021 response only addressed their view of the substantive issue, and stated that the grievance was denied as there was no breach of the C/A.

80. On February 17, 2022 the Employer’s counsel requested particulars as to the substance and nature of the grievance and “reserved its right to … raise any preliminary objections that might be warranted” based on the particulars. The Union argues that the reserving the right to raise objections was too unspecified and came too late as the waiver had already occurred in November 2021. In my notes from the March 24, 2023 hearing the Employer stated that they were bringing a motion to “have the grievance dismissed in its entirety” as it had not been grieved in a timely fashion. They also reserved their right to bring other preliminary motions, such as a lack of a prima facie breach of either the C/A or the Code, an illegitimate expansion of the scope of the grievance, and or a lack of jurisdiction as the grievance properly fell within the purview of the JIBRC.

81. With respect, I disagree with the Union’s view of the evidence and accept that the Employer’s February correspondence and March 2023 motion indicated that they required more clarity regarding the Grievor’s claim and did not have any intent to waive the right to raise a preliminary objection.

82. The Union’s argument that the waiver could not be rescinded, as stated in the Fung and Anand decision, is distinguishable from the facts of this case. In that decision, the Board found that the details of the conflict were made clear, and that the objection was raised after fresh steps, such as there being two meetings to discuss the grievance. The Ireland decision found that the failure of the employer to raise its objection at the time of the referral to arbitration was not a waiver of its right, in the circumstance where the parties had not engaged in a Step 2 meeting and the matter was first discussed during a mediation session that was held after the matter was referred to arbitration.

83. In the Bonacci decision Arbitrator Anderson found that the employer had not waived their right to raise a timeliness objection by their participation in the grievance process, as it was necessary for the Employer to receive sufficient particulars in order to make decisions about raising preliminary motions. As stated at paragraph 19:

Neither grievance, on its face, refers to a specific event nor otherwise indicates the date or dates on which the use of the CMR process alleged to breach the collective agreement took place. In the absence of this information, the Employer would have been unable to determine whether the grievances were timely. I thus reject the Union’s argument that by participating in the grievance procedure the Employer waived its right to raise a timeliness objection. The contrary conclusion would impede labour relations between the parties, as it could result in the Employer either making boilerplate objections or insisting on full and proper particulars prior to participating in the grievance process lest it be accused of waiver. Emphasis added.

84. I agree with Arbitrator Anderson’s view that sufficient particulars are required in order for an Employer to determine whether to raise preliminary objections. In the current case, particulars were requested on February 17, 2022 with the notice that the Employer was reserving their right to raise preliminary objections. During the Employer’s opening statement at the March 24, 2023 hearing, the Employer’s counsel identified that they were making a motion to have the grievance struck in its entirety as it was not grieved in a timely fashion, and they reserved their rights to bring other preliminary motions, potentially including that there was no prima facie breach of the C/A or the Code, that there was an expansion of the grievance’s scope, and/or that it was a matter that fell under the scope of the JIBRC.

85. The Union provided further particulars on June 22, 2022 just prior to the first day of hearing on June 28, 2022. The parties engaged in unsuccessful settlement discussions on that date, and during the case management portion at the end of the first day of hearing the Employer stated that they were considering raising further preliminary objections, such as there not being a prima facie case. The parties were to submit further particulars and provide the specifics of any objections, leading to the August 9 2022 Employer written notice of their specific preliminary objections, including timeliness.

86. In the circumstances of this case, I find that the Employer’s February 17, 2022 reservation of their right to raise objections, followed up by the March 24, 2023 motion, case conference discussions on June 22, 2022, and the August 9, 2022 written notice of the timeliness objection, were all objective indicators that the Employer did not intend to waive their right to raise a preliminary objection regarding the untimeliness of the grievance.

87. As pointed out by Arbitrator Anderson at paragraphs 20 and 21, the case law cited by the Union is not inconsistent with this conclusion, as the arbitrator refers to Vice-Chair Herlich’s decision in OPSEU (Union) v. Ontario (Ministry of Community Safety and Correctional Services) [Herlich decision], 2005 CanLII 55200 (ON GSB) (Herlich):

… for the proposition that the taking of a fresh step in the grievance procedure is sufficient to constitute waiver. I agree that it may. I note, however, that Arbitrator Herlich cited with approval the following statement (at p. 11): The concept of “waiver” connotes a party not insisting on some right, or giving up some advantage. However, in order to be operative, waiver will generally require both knowledge of and an intention to forego the exercise of such a right.

Emphasis added by Arbitrator Anderson.

88. In Bonacci Arbitrator Anderson also refers to the decisions cited by the union (also OPSEU) that made similar comments, even though these decisions concluded that waiver had occurred. The Union in this case also made reference to some of these same decisions. As Arbitrator Anderson goes on to comment, at paragraph 22, in the Jackson decision Arbitrator Banks states, at paragraph 38, that a “lack of particulars may be relevant to the determination of whether or not a grievance has been filed in a timely way”. And at paragraph 23, Arbitrator Anderson cites Arbitrator Stewart’s comment at page 10 that “timeliness of [the] grievance was clear from the information available to the Employer at the time the grievance was filed. The same cannot be said in the grievances before me”.

89. Similar to Bonacci, the situation in this case does not convince me that the Employer had both the knowledge required or the intention to forgo the exercise of their right to object to the untimeliness of the grievance. Once the exchange of particulars regarding the nature and timing of the grievance occurred during the period of February to June 2022, the Employer confirmed that they were raising a preliminary objection about the grievance not being filed on time, first during the March 24, 2023 hearing and again in writing on August 9, 2023.

90. As referred to earlier, the case law, for example see Metrolinx, Ireland, and Bonacci, suggests it is critical that all of the circumstances be considered. In the current case, there was no indication that the Employer intended to mislead the Union into believing that they did not intend to raise any objection, instead the Employer continued to clarify the nature of the dispute, and their actions were not consistent with an intent to waiver.

91. I also concur with Arbitrator Anderson’s caution in Bonacci to reject the Union’s argument that participation in the grievance procedure leads to an employer waiving their right to raise a timeliness objection as:

The contrary conclusion would impede labour relations between the parties, as it could result in the Employer either making boilerplate objections or insisting on full and proper particulars prior to participating in the grievance process lest it be accused of waiver. Emphasis added.

92. It was not reasonable for the Union to make the assumption that the Employer waived their objection to raise a timeliness argument regarding a grievance that was filed almost two and a half years after the Grievor was confirmed for her LTIP benefits (retroactive to August 2018). Given the circumstances of this case, I find that there was no waiver.

DECISION

93. As this grievance is found to be untimely, and the circumstances of this case do not establish that the Employer waived their right to object to the untimeliness, there is no need to determine the other alternative arguments raised by the parties.

94. The grievance is untimely, and I am not exercising my discretion under the LRA to extend the time limits, primarily due to the extent of the delay and the lack of any compelling reason being provided for the delay. In this situation, the Employer could reasonably assume that there was no issue to be raised as the Grievor had been in receipt of her LTIP benefits for almost three years prior to filing the grievance.

95. The parties made substantial submissions, including submissions regarding the main issue of whether the Grievor should accumulate vacation credits while she was on LTIP. I have not made any determinations about that issue. The Employer had requested that this matter be bifurcated so that the preliminary issues could be determined, potentially resolving the entire matter, as indeed has been the result. While it would normally be a reasonable way to proceed, in this case four of the ten hearing days were spent on preliminary issues. There was also overlap between some of the preliminary objections and the substantive issue (such as the objection that there was no prima facie case). For these reasons I ruled that the case would not be bifurcated.

96. I have made no decision regarding the substance of the grievance as I lack the jurisdiction to do so. Under Article 22.14.1 of the C/A this grievance is deemed to have been withdrawn as it was not processed within the time prescribed.

97. For these reasons the grievance is dismissed.

98. I thank counsel for their very able submissions on a challenging case.

Dated at Toronto, Ontario this 3^rd day of December 2024.