Laird v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2005 CanLII 53192

P-2003-0799

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Laird

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE GRIEVOR

Murray Laird

FOR THE EMPLOYER

Lucy McSweeney Counsel Management Board Secretariat

HEARING

September 28, 2004.

Decision

This decision deals with the employer’s preliminary motion seeking the dismissal of the grievance on the basis of delay.

Facts and Submissions

Based on the evidence before me, consisting of the oral evidence of the grievor, Murray Laird, and various documents entered on consent, the facts necessary to this decision are as follows. Since March 2002, Mr. Laird has been the superintendent of the Elgin-Middlesex Detention Centre, where he has worked in various progressively more responsible positions since 1996. In early March 2003, while reviewing policy because of an unrelated matter concerning one of the people who reports to him, he became aware of a personnel manual dated March 19, 1991, which suggested to him that his previous promotional increases had not been paid properly. He realized he had a complaint, and spoke to his manager, who advised there was nothing he could do at that time, so he submitted two grievances in writing on April 11, 2003, one dealing primarily with pay on promotion issues, which is the one being considered here, and one dealing with pay for performance issues, which was adjourned pending a related decision, about which more will be said below.

The grievance dealt with in this decision is worded as follows:

I grieve that the employer has failed to follow its own policies and procedures related to compensation on any of my acting assignments/direct assignments/promotions within the MCP categories, since 1998.

Particulars provided by Mr. Laird (leaving aside for the moment those related to pay for performance or merit pay) indicate that the details of his complaint relate to a series of events leading to what he believes is an inappropriately low base for his salary at various points since 1998. The first of these events was in April 1998, when Mr. Laird accepted an acting assignment as a Deputy Superintendent, AM18. When he was given a 3% raise, he inquired of then Superintendent Lockhart, who said 3% was all he would get. He accepted his word at the time, but having become aware of the content of various policies since, he now is of the view that the increase should have been 5%.

Effective October 19, 1998, Mr. Laird was appointed to the AM18 position as a result of a competition, at which point he was advised that his salary and anniversary date would remain unchanged. He now believes that applicable policy provides that he should have been considered for an increase at that time as well. Since he is aware of no documentation that this was done, he alleges that the responsible officials failed to follow policy.

On February 5, 2001, he accepted an acting assignment as Deputy Superintendent, administration, AM 19, and was give a 3% increase. As with his promotion to AM18, he believes he should have received a larger increase, 5% or more. He also believes that his anniversary date should have been adjusted when the assignment was made effective in June, 2001. As well, he is of the view that when he was confirmed as Deputy Superintendent, effective August 14, 2001, he should have been considered for additional compensation.

On March 4, 2002, he accepted an acting assignment as Superintendent (AM22), and was given a 6.539% increase to put his salary at the minimum of the classification. He was confirmed as Superintendent on September 9, 2002, at which point he believes he should have been considered for a further increase.

Employer counsel questioned Mr. Laird about why he had not become aware of the policies he now relies on at an earlier time, despite his free access to Human Resources in the senior positions he was filling. Mr. Laird testified that his first 8 weeks as superintendent were in a strike position. After that he was occupied with the reparation of the institution, as he termed it, bringing it back from the difficult circumstances of the strike. The superintendent’s job was then put up for competition, for which he had to study and compete. He was not directly responsible for any management promotions until 2003, so he did not need to be as aware of the policies involved until then. Up to that point he was relying on Human Resources as the pay experts.

The grievor does not agree that there was a delay as he acted promptly when he became aware of the fact that he might have a grievance. Thus, he submits there was no purposeful delay, and no intent or recognition of a grievance prior to the time period when he filed the grievance. Further, Mr. Laird notes that when the employer responded to his grievances in May, 2003, there was no objection to the timeliness of his grievances. He stated that he grieved back to 1998 because he believes there was a systemic prejudice by the employer in that they failed to follow their own procedures. He referred to the Kitzul case [Gregory Kitzul and Ministry of the Solicitor General and Correctional Services P/0008/93 (Walter)] by analogy, maintaining that the grievance should be heard on its merits.

By contrast, the employer takes the position that simply too much time has gone by, and that the employer would be prejudiced in its case, for instance, because some of the responsible officials who would be able to testify to the employer’s exercise of discretion on the occasions of Mr. Laird’s promotions have retired. It is submitted the employer has lost the opportunity to interview these people and therefore will not have the ability to call the case and present it as it would have been if the grievance had been filed in a timely way. Counsel notes that the shortest delay was seven months, and the longest five years.

In any event, and further to the Board’s jurisprudence on delay, counsel argues that it is not necessary to find actual prejudice to the employer, that the fact that it took too long and there is insufficient reason for the delay is enough. Counsel submits that the onus to explain the delay is on the grievor, not on the employer to prove prejudice. Employer counsel asked for an order on the timeliness issue before continuing on the merits

Analysis and Conclusions

The parties characterize the complaint in different ways, leading to different theories about whether there is any delay, and how it should be treated. The employer’s position is that the grievance targets certain decisions or potential decisions of the employer, at specific times in the past which were too long ago to allow for a fair hearing before the Board. For his part, the grievor sees the matter as a structural one, that was and is ongoing, and to which the employer raised no timeliness objection until the matter was scheduled for hearing.

Employer counsel filed a brief of precedents which illustrate the principles looked to by the Board concerning issues of delay. The Board has consistently held that the time limits in s. 34 (1) of Reg. 977 under The Public Service Act are directory and can be extended in appropriate circumstances at the discretion of the Board. Although each case turns on its own facts, the Board always balances the interests of both parties in deciding whether a matter should proceed to a hearing on its merits, considering the nature of the grievance, the reason for the delay and the length of the delay and whether there would likely be prejudice to the employer because of the delay. Delay can occur both before and after a grievor becomes aware of his or her complaint.

Johnston and Vipari and Ministry of Community and Social Services P/0003/99 (Leighton) is typical of the Board’s jurisprudence on delay. In that case, the Board found that the current language of subsection 34(1), like its predecessor provision, requires a subjective analysis, as to when the grievor became aware of his or her complaint, as well as a consideration of the length of the delay from that point, and the reasons for it. Despite no evidence of prejudice to the employer, the Board found eighteen months delay, from the time the grievors became aware that they would not be paid stand-by pay, to be too long, and dismissed the grievances.

In a case involving delayed awareness of a complaint, Amirault and Ministry of the Solicitor General and Correctional Services P/0028/94 (Lynk), the grievor complained of a salary discrepancy between herself and people she was supervising. The salary discrepancy had existed for almost two years before the grievor realized it existed and grieved. The employer argued that the grievor ought to have known earlier of the complaint because the correctional officer salaries to which she was comparing herself were easily available to her. This is very similar to the argument before me that the grievor should have discovered the policies he is relying on earlier because of his free access to Human Resources in the responsible positions he was holding.

In allowing the matter to proceed, the Board emphasized the fact that the time lines run from the grievor’s “becoming aware of the complaint”, the wording in s. 44(1) of Reg.977 under The Public Service Act (the predecessor provision to s. 34(1) which now uses the phrasing “becoming aware of the working condition or term of employment giving rise to the grievance”.) The test is primarily a subjective one, but tempered with the objective basis of inquiring when the complaint might reasonably have crystallized, and whether it is still possible to hold a fair hearing. The Board allowed the matter to go to a hearing because the grievor had acted as soon as she became aware of the discrepancy. Considering that there was no evidence of prejudice or that the grievor was, or should have been aware earlier than she was, the Board was persuaded that the matter should proceed.

In another case involving delayed awareness of a policy, in the context of a disciplinary demotion, Lay and Ministry of the Solicitor General and Correctional Services, P/0014/95 (Leighton), the Board held that a grievor must take some responsibility for informing himself as to policy, and that a delay of seven years after the event in question was just too long. The case was distinguished from Amirault because the grievor in that case had no reason to question her salary at the time of her promotion, whereas the grievor in Lay knew he was dissatisfied with the demotion at the time it occurred.

In the Kitzul case, cited above, and relied on by the grievor, the Board allowed the hearing of a discharge grievance despite a seven-month delay in the filing, in circumstances where the grievor was awaiting trial on related criminal charges, and thought that the outcome of that proceeding would affect his discipline case. In balancing the interests of the grievor against those of the employer, it was said that any prejudice to the employer due to the delay could be dealt with in fashioning a remedy. In the course of the reasons in Kitzul the Board refers to a decision of the Crown Employees Grievance Settlement Board, Clements and Liquor Control Board of Ontario GSB/112/80 (Prichard) which discussed the problems which delay creates for a fair hearing, in particular that a timely investigation was not done, because the employer was not on notice that there was an issue. In that case, the Board noted that it did not consider the retirement of one of the employer’s witnesses to constitute substantial prejudice. However, the departure of witnesses from the public service has weighed, together with other factors, against allowing matters to proceed in other cases such as Campbell and Ontario Realty Corporation P/0032/99 (Leighton), Kroeger and Ministry of the Solicitor General and Correctional Services P/0060/98 (Willes), Lay, cited above, and Durash and Ministry of Health P/0010/90 (Willes).

Part of the grievor’s argument is that the problem is ongoing, affecting his pay. In the terminology of the cases, this is an allegation that the matter is a continuing grievance. In Kitzul, cited above, at page 6, the Board discusses the doctrine of laches, or excessive delay, and quotes authority for the proposition that continuing grievances, those of “a continuing nature in the sense that each month a separate obligation arises” do not attract the application of the doctrine of laches since the grievance deals with a continuing series of offenses. The disciplinary demotion before the Board in that case was treated, by contrast, as a one-time event. See also an earlier case, P/0002/88 Oke and the Ministry of Energy, where the Board wrote as follows:

The essence of a continuing grievance is that rather than being a discreet act which occurs once and starts the clock running for the purpose of time limits, there are repeated or recurring instances of the act, any one of which may be regarded as starting the clock anew for the purposes of determining whether a grievance is timely.

In successful continuing grievances covering a lengthy period of time, consideration may be given to dealing with delay by limiting recovery to a period determined by the time lines of the applicable contractual or statutory provisions.

There are a number of ways to look at the question of delay in this case. To the extent that it deals with a complaint about the grievor’s current level of pay, a grievance is timely at each pay period, although the date of the complaint would be taken into account in considering the availability of and the extent of any remedy. Taken as a complaint about the specific decisions made in the past, the first level of analysis is the subjective one, which depends on when the grievor became aware of his complaint. The grievor’s evidence was that he became aware of the policies which prompted his complaint in early March, 2003, which is between five and six weeks before his April 11, 2003 grievances. Measured, as employer counsel argued it should be, from the employer decisions complained of, the range of time is from seven months to five years.

Having considered all the facts, arguments and precedents put before me, I find this matter to be very similar structurally to the Amirault case cited above. As in that case, the evidence is persuasive that the grievor did not realize that he had a complaint until he came upon certain policies in the course of his work. His evidence was given very credibly to the effect that up until this time, he had been completely engaged in the conduct of the institution during the strike and its aftermath, and had had no reason to be deeply involved in assimilating all the available policies in regards to pay. I consider the grievor’s explanation of the time lapse credible and reasonable, and do not find that his ongoing access to Human Resources should be found to mean that he should have been aware of the policies involved earlier. The grievor was not called upon to apply these policies earlier, and was not otherwise aware of them. Nor was there any evidence of how or why he should have been aware of them by some other means. I find that it was reasonable to attend to the priorities of the institution as they arose, rather than taking time out to research pay policy, as well as that he acted promptly once he became aware that certain policies existed which he believes entitled him to a higher pay base. Thus, from a subjective point of view there is a five to six week delay, a time period well within the time frames that have been allowed to proceed. If it is considered a continuing pay grievance, as noted, it is timely with each pay.

But would allowing the matter go to hearing prejudice the employer such that a fair hearing for both parties is no longer possible? The employer’s argument is that it is not necessary to prove prejudice; there is inevitable prejudice to their ability to present their case, given the amount of time that has gone by from the time of the decisions complained of which affected his pay. Starting from the most recent of the events complained of, the time lapse is seven months before the grievance was filed. Although evidence of actual prejudice will not always be necessary, especially when lengthy periods are involved, it is not my view that seven months is a length of time which spells inevitable prejudice to the employer’s case. Clearly, the potential for prejudice increases with the earlier events complained of, the furthest back of which is five years. However, balancing the interests of both sides, it appears clear that at least the issue of the most recent promotional increase should proceed to a hearing on the merits. Further, the issues and events affecting the grievor’s pay appear to be intertwined, and it is not possible on the evidence currently before me to sever the issues in a satisfactory way. As well, and in the absence of any specific evidence on the subject, I do not find the fact that witnesses have retired to necessarily lead to prejudice. They may still be available, and any actual prejudice that may become evident in the hearing of the grievance can be addressed, either as a matter of weighing the evidence, or in fashioning a remedy, should the grievance be successful in whole or in part. In sum, given the particular mix of facts in this case, it is preferable to allow the grievance in its entirety to be heard on its merits, and to address the effect of the various lapses of time in the context of all the evidence at the end of the day. In this context, it is important to note that that, as in Amirault, one of the main issues will be whether there is any applicable policy that has been violated at all.

For the above reasons, the matter is to be set down for hearing on a date to be set in consultation with the parties. In this regard, I note that the parties agreed that the other grievance filed by Mr. Laird, dealing with the manner of implementation of the employer’s pay for performance policy, would be deferred to such time as the Board had dealt with the issue of reconsideration of the Board’s February 5, 2004 decision in PSGB File #P-2003-2373 (Lee), at a time when it was thought that argument in that case would be completed shortly. It would be appropriate for the parties to consult the registrar as to the current status of that matter, and to advise the Board as to whether there is any change in their position on the scheduling of the issues as to the arbitrability of Mr. Laird’s other grievance, given any developments in the interim.

Dated at Toronto this 5th day of January, 2005.