Ontario Superior Court of Justice, Divisional Court

Court File No. DV-598/03

Date: 2004-03-26

Then, Brockenshire and Wilson JJ.

Counsel:

Garry R. Bergeron, for applicant, James Bay General Hospital.

Judith Allen, for respondent, Public Service Alliance of Canada.

No one appearing for respondent, Jane Devlin.

[1] By the Court:—This is an appeal from a preliminary order made by Arbitrator Devlin dated June 27, 2003 granting an extension of time to the Public Service Alliance of Canada (the Union) to proceed to arbitration for a grievance filed by Mr. Loone for his discharge from employment with James Bay General Hospital (the Hospital) [summarized 76 C.L.A.S. 387].

[2] Specifically, the arbitrator extended the time allowed for the grievance to proceed to arbitration pursuant to s. 48(16) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, as amended.

[3] The Union representative had unintentionally miscalculated the twenty-one day time line provided in the collective agreement by four days and failed to provide the required notice in writing of their intention to proceed to arbitration. Verbal confirmation of their intention to proceed to arbitration was provided within the twenty-one day period.

[4] The issue for determination is whether s. 48(16) of the Labour Relations Act, 1995 allows the arbitrator to extend the time limit, having regard to the facts and circumstances of this case, the terms of the governing collective agreement, and the case law.

The Relevant Statutory Provision

[5] s. 48(16) of the Labour Relations Act, 1995 provides:

48(16) Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. [Emphasis added.]

The Case Law

[6] The leading case on this issue is the Divisional Court decision in S.E.I.U., Local 204 v. Leisureworld Nursing Homes Ltd., [1997] O.J. No. 1469 (QL) (Div. Ct.) (Leisureworld) [reported 99 O.A.C. 196], confirmed by the Court of Appeal at S.E.I.U., Local 204 v. Leisureworld Nursing Homes Ltd., [1997] O.J. No. 4815 (QL) (C.A.) [summarized 75 A.C.W.S. (3d) 854].

[7] In the Leisureworld collective agreement, the arbitration procedure was distinct and separate from grievance procedure. The Court concluded on the facts of that case, based upon the governing collective agreement that "the arbitration procedure and the grievance procedure are separate links in the process and the referral to arbitration is not part of the grievance procedure" (at para. 18).

[8] In Re Ajax Precision Manufacturing (Triton Division) and United Steel Workers of America, Local 9042 (1999), 1999 35830 (ON LA), 85 L.A.C. (4th) 280, with respect to the grievance procedure, the collective agreement provided "whenever the term 'grievance procedure' is used in this Agreement, it shall be considered as including the arbitration procedure". Arbitrator Shime in Ajax Precision distinguished Leisureworld on the specific language and structure of the governing collective agreement. Arbitrator Devlin followed the principles of Ajax Precision in determining that she had jurisdiction.

The Governing Provisions of the Collective Agreement

[9] In the governing collective agreement in the instant case, the grievance procedure defines Step 3 as the referral to arbitration. The following are Steps 1, 2 and 3 of the grievance procedures:

Article 7 — Grievance and Arbitration Procedure

7.03 Step 1

An employee may submit a grievance in writing to the Director or designate within fourteen calendar days from the date the grievor became aware, or ought to have reasonable [sic] become aware of the circumstances giving rise to the grievance. The grievance shall clearly state the nature of the grievance, the provisions of the Collective Agreement alleged to have been violated, the remedy sought, and shall be signed by an authorized Union representative. Where requested by the grievor at the time of the submission of the grievance, a meeting shall be held between the Director and the grievor no later than seven calendar days after such request. The grievor may be accompanied by a steward, if the employee wishes. Within nine calendar days of receipt of the grievance, or the holding of the meeting, the Director or designate shall reply in writing.

7.04 Step 2

Failing satisfactory settlement at Step 1, the grievor may submit the grievance to the Executive Director or his designate within fourteen calendar days from the date of receipt of the reply to the grievance from Step 1. Where requested by the grievor at the time of the submission of the grievance, a meeting shall be held between the Executive Director and the grievor no later than seven calendar days after such request. The grievor may be accompanied by a union representative, if the employee wishes. Within nine calendar days of receipt of the grievance or the holding of the meeting, the Executive Director or designate shall reply in writing.

7.05 Step 3

Failing satisfactory settlement at Step 2, the grievance may be referred to arbitration as hereinafter set out, provided such referral is made within 21 calendar days of the answer at Step 2. Where such referral is not made within the time limits, it shall be deemed to be abandoned.

[10] These provisions are later followed by a heading "Arbitration Procedure", which outlines the agreed-upon procedures after the matter is referred to arbitration.

Standard of Review

[11] We confirm in accordance with the conclusion in Leisureworld that the standard of review with respect to an arbitrator interpreting the meaning of s. 48(16) confirming jurisdiction is that of correctness.

Reasons of the Arbitrator

[12] Arbitrator Devlin confirmed that the question of jurisdiction to extend time to arbitration is dependent upon the language and the construction of the governing collective agreement. We agree with the arbitrator's analysis distinguishing Leisureworld from the facts of this case based upon the language of the collective agreement. She states at p. 12 of her decision:

Having carefully considered the matter, I agree with Arbitrator Shime that an Arbitrator's jurisdiction to extend the time for referring a grievance to arbitration depends on the language and construction of the collective agreement. In this regard, as noted by Arbitrator Shime, the majority of the Board of Arbitration in Leisureworld concluded that under the collective agreement in that case, the referral to arbitration formed part of the arbitration procedure, rather than the grievance procedure. That finding was approved by the Divisional Court and I agree with Arbitrator Shime that the Leisureworld decision does not stand for the proposition that an Arbitrator is without jurisdiction to grant an extension of time for the referral to arbitration, regardless of the provisions of the collective agreement. While the words "or arbitration" were deleted from the relevant subsection of the Labour Relations Act in 1995, section 46(16) [sic] clearly confers on an Arbitrator the discretion to extend the time "for the taking of any step in the grievance procedure", provided the criteria set out in the section have been satisfied.

[13] As well, we concur with the following analysis as to the applicability of s. 48(16) of the Labour Relations Act, 1995 found at pp. 13-14 of her decision:

There is admittedly no provision in the collective agreement in this case similar to that in the agreement before Arbitrator Shime, specifying that the term "grievance procedure" includes the arbitration procedure. Nevertheless, in the collective agreement before me, step 3 of the grievance procedure constitutes the referral to arbitration. Moreover, although the form of the referral to arbitration is dealt with in Article 7.11, the time limit for that referral, in respect of which the Alliance seeks an extension in this case, clearly appears as step 3 of the grievance procedure.

Accordingly, as section 48(16) of the Labour Relations Act provides that an Arbitrator "may extend the time for the taking of any step in the grievance procedure", I find that under this collective agreement, I have jurisdiction to extend the time limit as step 3 of the grievance procedure, which is the referral to arbitration.

Conclusion

[14] We conclude that the arbitrator in the facts of this case was correct that she had jurisdiction pursuant to s. 48(16) of the Labour Relations Act, 1995 to extend the time in Step 3 of the grievance procedure to refer the matter to arbitration. Section 48(16) provides the arbitrator with the discretion to "extend the time for the taking of any step in the grievance procedure under a collective agreement". There were reasonable grounds for the extension, and the Hospital will not be substantially prejudiced by this extension.

[15] If the referral to arbitration is by the terms of the collective agreement specifically included as a "step" in, and part of the grievance procedure, then there is jurisdiction for the arbitrator to extend time pursuant to s. 48(16) of the Labour Relations Act, 1995. If, however, by the terms of the collective agreement, the grievance procedure is distinct from the referral to arbitration, then no such jurisdiction exists.

[16] In this case, the defined grievance procedures and referral to arbitration, by the terms of the collective agreement, are inextricably intertwined. It may well be that parties structured their collective agreement as they did to avoid the strict application of the Leisureworld ruling. We note that the governing collective agreement in this case came into effect in March 2000, after the Leisureworld decision.

[17] Although there is a qualitative difference between grievance and arbitration, in this case, the parties, by the terms of the collective agreement, agreed to a grievance procedure which specifically included the referral to arbitration in Step 3. Leisureworld is distinguishable, and the reasoning of Arbitrator Shime in Ajax Precision is helpful.

[18] For these reasons, the appeal is dismissed.

[19] Appeal dismissed.