P/0012/88, P/0009/89

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

B. Callaghan

Grievor

• and -

The Crown in Right of Ontario (Ministry of Agriculture and Food)

Employer

BEFORE

J.A. Willes G. Deszca

Vice-Chairperson Member

FOR THE GRIEVOR

R. Kealey Counsel Kealey & Kealey Barristers and Solicitors

FOR THE EMPLOYER

C. Riggs Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers and Solicitors

HEARING

December 11, 1991

ADDENDUM TO AWARD

The award in the above arbitration was completed on or about December 17, 1990, and released to the parties. The award addressed the matter of the grievor's legal expenses in the following terms:

"This Board accordingly awards the grievor compensation ... and reasonable legal costs associated with this grievance arbitration.”

The Board further stated in the award:

“Should the parties have any difficulty with the determination of compensation, this Board remains seised of the matter."

Counsel for the grievor in due course (and pursuant to the direction in the award) submitted a Bill of Costs for payment by the employer. The employer refused to pay the account, and counsel for the grievor returned the issue to this Board with a request that the Board direct payment.

At the hearing which was re-convened to hear the dispute, counsel for the employer submitted that the Public Service Grievance Board lacked authority to award legal costs to a grievor, as the specific power to award costs was not contained in the governing legislation and regulations. In the alternative, counsel argued that if costs are awarded, the costs should be reasonable and in line with the costs that might be awarded with a matter placed before the Divisional Court.

Counsel for the grievor submitted that in terms of challenging the authority of the Board to award costs, the Board was now functus officio except to consider the determination of the compensation, and the employer had the opportunity to challenge the Board award by judicial review, but chose not to do so.

Counsel for the grievor and counsel for the employer submitted argument and cases to support their respective positions on the issue of the authority of this Board to award legal costs as a part of a grievor's compensation. This Board has reviewed the arguments and cases, and in our view the Public Service Grievance Board is not simply a board of inquiry. It has the authority to deal with grievances concerning dismissal and working conditions that fall within its jurisdiction. This authority of the Board has implicit in it the authority to render a decision of a remedial nature, and where appropriate, compensate a grievor for successfully processing the grievance.

Regulation 881 s.38 specifically provides that a grievor may nominate a person to act on his or her behalf with respect to the grievance, and s.39 permits the representative to carry out activities which are clearly those conducted by legal counsel in an adversarial setting. Given the nature of grievance proceedings before an arbitration board, one would not expect this type of service to be rendered gratis, but would represent an expense which a grievor would incur in order to establish a level playing field with the employer.

If the purpose of the Board is to ensure that employees are treated in accordance with the Public Service Act and the Regulations thereto by the employer, then in a case where the Board determines that the employer has not done so, a Board directive to the employer to correct the wrong must surely carry with it the authority to also indicate what the employer must do to restore a successful grievor to his or her rightful place in terms of both status and financial position. In other words, the authority of the Board must permit it to make a meaningful award without penalizing the grievor financially in those cases where the grievance is upheld. If this is the case, then an award of compensation, where appropriate, should attempt to place a successful grievor (in so far as possible) in the same position financially as if the event that gave rise to the grievance did not occur, and this should include those reasonable costs incurred by the grievor to process the grievance to rectify the matter.

This is not to say that a grievor is entitled to costs as of right, nor does it entitle a grievor to a blank cheque to cover legal costs on a solicitor-client basis. This Board is entitled to fix the compensation in terms of what it determines appropriate in the circumstances. In the case before us, the award included the grievor's reasonable legal costs associated with the arbitration.

Counsel for the grievor submitted a bill of costs pursuant to the award in the amount of $46,797.18, which included expenses of $1,297.18. The expenses are not in dispute. At the hearing, counsel for the grievor conceded that he had billed for seven hearing days instead of three days. In addition, he admitted that his consultation and preparation time was approximately 55-60 hours, rather than the 112 hours set out on his account.

Counsel for the employer stated that in so far as he could determine, the 53-55 hours included the hearing days, and to add a counsel fee on top of this, would, in effect, represent double counting of hearing time in the calculation. According to counsel for the employer, approximately 22 hours and 30 minutes should be deducted for the hearing time, which would leave about 30-32 hours.

Counsel for the grievor submitted his daily time records (time docket slips), and the Board has attempted to determine the file time spent by the solicitor for the period of time in question.

The Board has reviewed the time records provided by counsel for the grievor in an effort to determine the time devoted to the grievor's file. Of the 38 docket entries, 12 were over-written with different numbers or had additions, but our best efforts at time analysis provides the following:

hearing days: 3

travel time: 4 hrs (excluding travel time on hearing days)

preparation time: 19 hrs 5 minutes (up to 21 hrs 45 minutes possibly)

The time records of counsel for the grievor for the first hearing day (April 12, 1990) indicate a total of 8 hours devoted to the case. This figure includes travel, preparation and hearing time. The second hearing date, (June 25, 1990) has 9 hours travel, 2 hours preparation, and 5 hours allocated to the hearing. The last hearing date, (July 4, 1990) indicates that travel time was 4 hours, and preparation 1/2 hour. For the hearing days, the Board is prepared to fix an all-inclusive day rate for each hearing date of $2,500, for a total of $7,500.

Preparation time was difficult to determine with any degree of accuracy, given the changes in time for 12 of the entries and the absence of information on the sheets. Counsel has indicated that his billing rate is $250/hr. Applying this figure to the 19 hours 5 minutes noted on the time records, the amount would be $4,750.

The remaining 4 hours travel time, given that it is shown as travel time only, we would charge at half the counsel's billing rate. This would amount to $500.

In summary, this Board would determine the fees to counsel for the grievor in the case to be: $7,500 for 3 hearing days, $4,750 for preparation time, and $500 for travel time on non-hearing days, for a total of $12,750. To this figure, disbursements in the amount of $1,297.18 would be added, bringing the final total to $14,047.18.

The employer is therefore directed to compensate the grievor for reasonable legal costs, which this Board determines to be $14,047.18. In view of the circumstances, this Board is not prepared to consider an award of interest or a counsel fee for the December 11, 1991 hearing date.

Dated at Toronto this 4th Day of February, 1992.