P/0012/89

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

T. Jones

Grievor

• and -

The Crown in Right of Ontario (Ministry of Correctional Services)

Employer

BEFORE

J. Willes Acting Chairman

N. Agarwal

Member

FOR THE GRIEVOR

C. Harber Counsel Haber, Haber & Associates Barristers and Solicitors

FOR THE EMPLOYER

A. Gulbinski Grievance Officer Ministry of Correctional Services

HEARING

February 7, 1994

DECISION

The issue brought before the Board is a matter arising out of a decision of the Board to deny legal costs to the grievor, Tracy Jones in its award dated January 7, 1992. The parties apparently had numerous discussions concerning the implementation of the award, and the one remaining issue relates to a demand by the grievor that the employer compensate him for his legal costs.

The relevant provision of the award states @ p. 22

“While the grievance succeeds in part, the question of remedy must be addressed. Given all of the evidence, dismissal is clearly unwarranted. It is therefore, the decision of this Board that the grievor be re-instated with full compensation for time lost, and the penalty of a written reprimand be substituted for the discharge imposed on March 14, 1990.

This Board remains seised of the matter should the parties have any difficulties with the implementation of the award.”

Counsel for the grievor submits that the grievor should be granted his legal costs as a part of his compensation, and argues that this Board has the authority to grant costs. In support of this contention, counsel cited a number of cases where this Board has either referred to costs, awarded costs, or incorporated an agreement as to costs in its award. In particular, counsel cited Public Service Grievance Board cases: B. Callaghan and The Crown in Right of Ontario (Ministry of Agriculture and Food) P/009/89; V. Daley and The Crown in Right of Ontario (Ministry of Correctional Services) P/0027/91; Jay Saint and The Crown in Right of Ontario (Management Board of Cabinet) P/0001/87; M. Coons, M. Stewart, G. Wootton, R. Smalley and W. Silver and The Crown in Right of Ontario (Ministry of Correctional Services) P/0013/87; K. Elgundi and The Crown in Right of Ontario (Ministry of Labour) P/0014/88; and Grievance Settlement Board award R. Lucifora and The Crown in Right of Ontario (Ministry of Correctional Services) 393/88; and Re Ontario Public Services Union and Ontario Public Service Staff Union (1984) 1984 CanLII 5127 (ON LA), 16 L.A.C. (3d) 278.

Counsel for the employer submits that the Board has no power to award costs, and that the employer has fully compensated the grievor in accordance with the award of the Board. Counsel further states that the general policy of the Board is to not award legal costs, and that the only case where legal costs were awarded was the Callaghan case (supra). Counsel characterized Callaghan as an 'abberation', which addressed a specific situation that was clarified in the Daley case (supra). Counsel cited Public Service Grievance Board awards: Shilman and The Crown in Right of Ontario (Ministry of Community and Social Services) P/0008/88; V. Kanqa and The Crown in Right of Ontario (Ministry of Health) P/0010/86; and Grievance Settlement Board case O.P.S.E.U. (Humphries) and The Crown in Right of Ontario (Ministry of Health) in support of the proposition that the Board did not award legal costs.

This Board has carefully reviewed the submissions and arguments of counsel for each of the parties concerning the award of legal costs by this Board. While the Board has, on a number of occasions, incorporated a settlement of the parties into an award that has included the payment of legal costs by the employer [see for example, Jay Saint and Elgundi (supra)] the Board has followed a policy of not awarding legal costs.

The Callaghan case stands as an exception to this policy and represents an unique situation where justice demanded a particular remedial response. The reasons for compensating the grievor were clearly set out in that case, and commented upon again in the V. Daley case. As the Callaghan case indicates, the grievor was obliged to bring a second grievance before the Board because the grievor's supervisors had concealed from the Board during the first grievance hearing the fact that (unknown to the grievor) they had taken steps to ensure that any award of the Board in the grievor's favour would be unenforceable. Fairness under these unusual circumstances dictated compensation to the grievor for his obligation to process a second grievance to bring before the Board the impropriety of his superiors. His reasonable legal expenses represented a part of his expense in bringing the matter before the Board.

Counsel for the employer described the Callaghan case as an 'abberation' in a long list of cases where the policy of the Board has been clearly stated. This characterization is perhaps appropriate, as the case in no way represents a change of direction on the part of the Board. The Callaghan case represented an unusual situation which hopefully may never arise again, and the compensation award in that case was fashioned to deal with that unique situation, and that situation alone. In the Daley case the Board made it very clear that the Callaghan case should not be treated as a precedent. The Board stated at p. 12:

"The Callaghan case represented a particular incident in which the employer failed to disclose to the Board during the arbitration hearing process that it had made the grievor's position redundant, an action that essentially rendered the grievance pointless and the Board's award useless to the grievor in terms of the relief requested and ultimately granted. The grievor in that case was then required to grieve again the actions of the employer, and it was in the second case that his reasonable legal costs were awarded.

The general and long-standing policy of this Board has been to not award legal costs to grievors. The Callaghan case represents a very rare situation where justice and the fairness required making the grievor whole, and should not be taken to reflect present Board policy on the issue of legal costs.”

Counsel for the grievor has suggested that the case now before the Board is also unique, given the information in the hands of the employer at the time of the discipline and before the hearings began. However, this Board found no impropriety on the part of the employer, and can find nothing to suggest that this case differs in any significant way from the type of cases normally brought before it.

The policy of this Board is to not award legal costs, and the policy is applicable to the case before us for the reasons given. The request for legal costs is therefore denied.

DATED AT TORONTO THIS 24th DAY OF AUGUST, 1994.